Springer v. Springer

853 P.2d 888, 1993 Utah LEXIS 87, 1993 WL 158822
Utah Supreme Court·Decided May 13, 1993·No. No. 920349·Published·Cited by 2 cases

Opinion

DURHAM, Justice:

Michael Springer appeals from an order of the district court ruling that he did not timely exercise his rights of redemption to property he owned in joint tenancy with Barbara Kudlik, formerly known as Barbara Springer. We affirm.

Michael and Barbara Springer were divorced in September 1988. The decree provided that the parties would hold certain property (the “Cherry Wood property”) as joint tenants. After the divorce, Mr. Springer failed to pay child support as required by the decree, prompting Mrs. Kud-lik to seek and obtain numerous orders and judgments for unpaid support. In qn effort to enforce and collect on the child support judgments, Mrs. Kudlik obtained several writs of execution and garnishment, one of which resulted in a sheriff’s sale on March 5, 1991, of Mr. Springer’s interest in the Cherry Wood property. Mrs. Kudlik submitted the high bid of $5000.

On September 3, 1991, Mr. Springer communicated his desire to redeem the property. By letter dated the next day, Mrs. Kudlik’s attorney advised Mr. Springer’s attorney that in addition to the amount bid for the property, Mr. Springer would have to reimburse Mrs. Kudlik for delinquent taxes that her new husband had paid on the subject property. The letter informed Mr. Springer’s attorney that Mrs. Kudlik would notify him of the amount due as soon as it was ascertained and that reimbursement would be due within forty-eight hours of notification. Mr. Springer does not claim that he or his attorney ever objected to the forty-eight-hour requirement. On September 5, 1991, Mr. Springer tendered a check for $5150.88, the amount of the bid plus interest. On September 9, 1991, Mrs. Kud-lik’s attorney communicated the amount due for reimbursement of the tax payment.

At this point, the controversy begins. Mrs. Kudlik demanded that Mr. Springer reimburse the entire tax payment, namely, $8209.16 plus interest. Mr. Springer, on the other hand, maintained that as a joint tenant, he owed only one-half of that amount. On appeal,' Mr. Springer claims that the parties continuously negotiated the amount due between September 9, 1991, and November 6, 1991, the date on which he tendered payment of one-half the property taxes. However, Mrs. Kudlik contends that no such negotiations occurred. A letter dated September 20, 1991, sup[890] ports Mrs. Kudlik’s claim; the letter informed Mr. Springer that his payment was past due and that Mrs. Springer intended to demand a sheriffs deed for the property.

On November 6, 1991, nearly two months after Mrs. Kudlik first demanded payment, Mr. Springer reimbursed one-half of the tax payment, without interest. One week later, he obtained an ex parte order prohibiting the sheriff from issuing a deed to the property.1 Finally, on November 15, 1991, Mr. Springer filed a petition pursuant to rule 69(f)(3) of the Utah Rules of Civil Procedure asking the district court to hear his objections to the amount demanded to redeem the property. After a hearing on December 6, 1991, the district court found the attempted redemption to be untimely, stating, “[Gjiven the totality of the facts and circumstances in this case, generally, and the failure of [Mr. Springer] to timely exercise his rights of redemption and file the Petition, specifically, the Petition shall be, and it hereby is, denied_” Mr. Springer appeals from the order.

On appeal, Mr. Springer urges that the district court committed reversible error by ruling that his redemption was untimely. He notes that he tendered the amount of the bid plus interest within six months of the sheriffs sale and claims that he filed the petition promptly after learning of the dispute over the amount required to reimburse the tax payment. He thus alleges that he has met the requirements of rule 69(f)(3) in accordance with our prior construction of the rule. In addition, he asserts that the district court improperly based its ruling on his repeated failure to pay child support.

The parties agree that rule 69(f)(3) of the Utah Rules of Civil Procedure controls this appeal. This rule provides that a person seeking to redeem property sold through a sheriff’s sale must pay the amount of the bid, together with any amounts spent for taxes or maintenance of the property, plus six percent interest. Redemption must take place within six months after the .sale. In the event of a dispute over the amount owed to redeem the property, the rule provides:

[Tjhe person seeking redemption may pay the amount necessary for redemption, less the amount in dispute, to the court out of which execution or order authorizing the sale was issued, and at the same time file with the court a petition setting forth the item or items demanded to which he objects, together with his grounds for objection; and thereupon the court shall enter an order fixing a time for hearing of such objections.

Utah R.Civ.P. 69(f)(3).

Mr. Springer paid the amount of the bid plus interest on September 5, 1991, exactly six months after the sheriff’s sale; at issue is whether he complied with the rule in tendering the payment of the tax reimbursement and in filing the petition asking the court to resolve the dispute. Mr. Springer did not tender the tax reimbursement until November 6, 1991, at which time he paid one-half the amount demanded, without interest. He did not file his petition until November 15, 1991, almost two and one-half months after the redemption period expired under the rule.2

[891] Mr. Springer attempts to circumvent the requirements of rule 69(f)(3) by urging this court to require substantial, rather than strict, compliance with the rule. This court has allowed substantial compliance with the requirements of rule 69(f)(2), which prescribes the process by which redemption is made, United States v. Loosley, 551 P.2d 506, 508 (Utah 1976), but not with rule 69(f)(3). Mr. Springer now asks us to extend Loosley to rule 69(f)(3) situations. However, in Mollerup v. Storage Systems International, 569 P.2d 1122, 1124 (Utah 1977), we held that redemption under rule 69(f)(3) requires strict compliance except where a court sitting in equity decides that the circumstances warrant an extension of the redemption period. Further, the court of appeals has distinguished between rules 69(f)(2) and 69(f)(3) and concluded that 69(f)(3) implicates substantive rights, requiring strict compliance with its terms. Tech-Fluid Serv. v. Gavilan Operating, 787 P.2d 1328, 1332-33 (Utah Ct.App.1990).

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Springer v. Springer, 853 P.2d 888, 1993 Utah LEXIS 87, 1993 WL 158822 (Utah 1993).

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