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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0431-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JERRY'S SEPTIC &
EXCAVATING, INC.,
Plaintiff,
G & B MASONRY,
Appellant,
v.
THORNAPPLE LLC, d/b/a
ALL PHASE
CONSTRUCTION, INC.,
ALL PHASE DEVELOPMENT,
INC.,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Oneida County:
MARK MANGERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. G & B Masonry, a partnership, appeals a trial
court order that refused to confirm a sheriff's sale of real estate and instead
dismissed the proceedings.[1] The judgment creditor's complaint sought
foreclosure of the construction lien it had on the judgment debtor's real
estate, and the judgment creditor succeeded in obtaining a default
judgment. The judgment, however,
granted only a money judgment and made no mention of the construction lien's foreclosure. Nonetheless, the judgment creditor sought to
enforce its judgment against the real estate and eventually obtained a
sheriff's sale. G & B Masonry was
the only bidder at the sale and immediately tendered $2,000 partial payment to
the trial court clerk.
After the sale but
before confirmation, the judgment creditor assigned its judgment to an owner of
the judgment debtor, in exchange for the owner's payment of amounts owed the
creditor under the judgment. On this basis
of this transaction, the trial court refused to confirm the sheriff's sale and
instead dismissed the proceedings. The
trial court ruled that the case had become moot once the judgment creditor
assigned its judgment to an owner of the judgment debtor, despite the fact that
G & B Masonry had already tendered payment for its bid at the sheriff's
sale. In the trial court's view, it had
the power to deny confirmation of the sale, regardless of the fact that G &
B Masonry's bid and tender predated the judgment's assignment.
On appeal, G & B
Masonry argues that the sheriff's predated assignment of the judgment took
precedence over the assignment; this gave G & B Masonry a superior interest
in the real estate and compelled confirmation of its otherwise financially
sufficient bid. In support of this
position, G & B Masonry claims that judgment debtors have no redemption
rights in construction lien foreclosure proceedings. In response, the judgment debtor argues that the proceedings were
not construction lien foreclosure proceedings, but judgment execution
proceedings, in which judgment debtors enjoy redemption rights. We reject G & B Masonry's arguments and
affirm the trial court's order.
We conclude that G &
B Masonry had no legal basis to compel confirmation of the sale. At the outset, we need not decide whether
the judicial sale arose in a construction lien foreclosure proceeding or a
standard judgment execution proceeding.
We also need not decide whether the judgment had defects that should
have invalidated the judicial sale. Even
if we accept arguendo G & B Masonry's position that the proceedings
qualified as a valid construction lien foreclosure sale, we conclude that G
& B Masonry had no vested interest that would have required the trial court
to confirm the sale. The construction
lien statutes do not expressly cover this situation. See ch. 779, Stats. In such circumstances, we apply the
pertinent principles of common law or equity jurisdiction. See Buchner v. Gether Trust,
241 Wis. 148, 153-54, 5 N.W.2d 806, 809 (1942).
Under longstanding
principles of equity jurisdiction, successful bidders at judicial sales acquire
no fixed or vested rights in the property.
Rather, courts supervising judicial sales have considerable freedom to deny
confirmation on equitable grounds in justice to the parties. See Camden v. Mayhew,
129 U.S. 73, 82 (1889); Blossom v. Railroad Company, 70 U.S. 196,
207 (1865); In re Lustron Corp., 184 F.2d 798, 801 (7th Cir.
1950); The East Hampton, 48 F.2d 542, 544 (2d Cir. 1931); Tennessee
v. Quintard, 80 F. 829, 835 (6th Cir. 1897); Mayhew v. West
Virginia Oil & Oil Land Co., 24 F. 205, 215 (C.C.D. W.Va. 1885); see
also Anthony Grignano Co. v. Gooch, 259 Wis. 138, 141, 47
N.W.2d 895, 897 (1951). Here, several
factors provided the trial court an equitable basis to reject G & B
Masonry's motion for confirmation and to dismiss the proceedings.
This lawsuit was
processed in a confused fashion. The
pleadings prayed for a foreclosure judgment, but the trial court signed a money
judgment. Thereafter, the judgment
creditor took steps to obtain a sheriff's foreclosure sale. The sheriff conducted the sale and accepted
G & B Masonry's bid. After the
sale, the trial court held a confirmation hearing. The judgment creditor then stated its intent to try to settle the
matter with the debtor, and the trial court adjourned the confirmation hearing,
without protest from G & B Masonry, which failed to insist that the trial
court move ahead and confirm its bid at the sheriff's sale. After the hearing, the judgment creditor
settled the dispute with the judgment debtor and assigned the money judgment to
one of the judgment debtor's shareholders.
These facts permitted the trial court to weigh the equities in the
judgment debtor's favor and to reject G & B Masonry's bid.
By the Court—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.