Pioneer Builders Company v. KDA Corporation
Pioneer Builders Company v. KDA Corporation
Opinion
¶1 K D A Corporation (K D A) appeals the district court's order that denied its Motion to Enforce Redemption Right and granted Pioneer Builders Company of Nevada Inc.'s (Pioneer) Motion to Enforce Settlement Agreement. K D A argues the court erred in ruling K D A waived the statutory right of redemption 1 under the terms of a settlement agreement (the Agreement) between K D A and Pioneer. We conclude K D A did not waive its right of redemption because the Agreement did not contain a clear and unmistakable waiver of that right. We therefore reverse and remand this case to the district court for further proceedings consistent with this opinion.
BACKGROUND
¶2 In October 2000, K D A sold approximately forty acres of real property (the Property) to a buyer through an installment contract and secured by trust deed. The buyer financed the purchase with a loan from Pioneer, and Pioneer's loan was also secured by trust deed. When the buyer defaulted, Pioneer sought to foreclose. The foreclosure resulted in a dispute concerning the relative priority of the parties' trust deeds. After several years of litigation, Pioneer and K D A entered into the Agreement to "resolv[e] all differences between them, subject to the terms and conditions of [the] Agreement."
¶3 The Agreement included multiple provisions that subordinated K D A's trust deeds to Pioneer's trust deeds. Specifically, K D A *541 agreed that Pioneer's trust deeds "attached to, affect, and encumber [the Property] ... ahead of, superior to, and not subject to KDA's [trust deeds]." The parties reiterated that priority by including a formal subordination agreement, stating:
[A]s part of a settlement of various claims and disputes between and among them, KDA and Pioneer have agreed ... to the subordination of KDA's [trust deeds] and its other claimed estates, rights, titles, liens, and encumbrances, and other interests in, on, and/or to the Property ... to Pioneer's [trust deeds].
K D A further agreed "that pursuant to [the subordination agreement] Pioneer's [trust deeds] ... have priority over KDA's [trust deeds], and any and all other liens, encumbrances, and other interests of KDA in, on, and to the Property," and that the priority of Pioneer's trust deeds over K D A's trust deeds "shall be respected in the presently pending judicial foreclosure."
¶4 The Agreement also contained stipulations, releases, and reservations of claims. In one provision, K D A agreed that
Pioneer is entitled to foreclose upon [the Property], ... including, but without limitation, foreclosing out, terminating, and extinguishing any and all estates, rights, titles, liens, encumbrances, and other interests ... that KDA may have or claim in, on, or to [the Property], including, without limitation, KDA's [trust deeds.]
K D A did not expressly reserve the right of redemption as a subordinate lienholder on the Property.
¶5 After executing the Agreement, Pioneer continued with the foreclosure. At a sheriff's sale, Pioneer was the only bidder and purchased the Property for $200,000. Less than six months later, K D A attempted to redeem the Property as a subordinate lien holder, serving Pioneer with an exercise of redemption and a cashier's check for $212,000. Pioneer rejected the redemption attempt and returned the check, claiming that K D A waived the right of redemption when it signed the Agreement.
¶6 K D A filed a Motion to Enforce Redemption Right with the district court. In that motion, K D A denied waiving the right of redemption and asserted its rights as a " 'creditor having a lien on the property junior to that on which the property was sold.' " (Quoting Utah R. Civ. P. 69C(b).) To that end, K D A asked the court to interpret the Agreement as merely subordinating the priority of its trust deeds to those of Pioneer.
¶7 Pioneer opposed K D A's motion and filed its own motion to enforce the Agreement as a waiver of K D A's right of redemption. It argued that the Agreement's language of the agreement "clearly demonstrates KDA waived any and all interest it had in" the Property. Pioneer also noted that, although the Agreement expressly reserved K D A's "existing and ongoing rights," it did not reserve the right of redemption.
¶8 After considering the arguments, the district court concluded that K D A "freely and validly waived its right of redemption and was not entitled to redeem the Property." The court stated that the "Agreement clearly provides Pioneer is entitled to foreclosure upon the Property, thus foreclosing out, terminating, and extinguishing any and all estates, rights, titles, liens, encumbrances, and other interests ... that KDA may have or claim in ... [the Property]." (Quotation simplified.) Based on that language, the court concluded that "when Pioneer foreclosed upon the Property, any right or title KDA had was extinguished." "Therefore, when KDA attempted to redeem the Property, ... it was no longer a 'creditor having a lien on the property' or 'a creditor having a right of redemption.' " (Quoting Utah R. Civ. P. 69C(b).) After the district court ruled in favor of Pioneer, K D A stipulated to Pioneer's award of attorney fees as the prevailing party, but reserved the right to challenge that award and seek its own attorney fees if successful on appeal.
¶9 K D A appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 K D A argues the district court erred in interpreting the Agreement to waive its statutory right of redemption. "Settlement agreements are governed by the rules
*542
applied to general contract actions."
Bodell Constr. Co. v. Robbins
,
¶11 K D A also challenges the district court's award of attorney fees to Pioneer. We review the district court's award of attorney fees for correctness.
See
Jones v. Riche
,
ANALYSIS
I. Waiver
¶12 K D A argues the district court erred in ruling that it waived the statutory right of redemption when it entered into the Agreement. We agree. A waiver of any statutorily guaranteed right must be "explicitly stated," so that the parties' intent is "clear and unmistakable."
See
Larsen Beverage v. Labor Comm'n
,
¶13 "Settlement agreements are governed by the rules applied to general contract actions."
Bodell Constr. Co. v. Robbins
,
¶14 Waiver is "the intentional relinquishment of a known right."
Soter's, Inc. v. Deseret Fed. Sav. & Loan Ass'n
,
¶15 Further, the right of redemption is a statutory right.
Pyper v. Bond
,
¶16 Here, the Agreement does not establish a "clear and unmistakable" waiver of the right of redemption.
See
Medley
,
¶17 Pioneer argues that "the all-encompassing language in [that provision] leaves no doubt that K D A's right of redemption was terminated." But "such a restrictive reading of [that provision] is not supported by [this court's] prior decisions."
Larsen Beverage
,
¶18 Here, the Agreement "contains neither a mention of the statute at issue nor even a reference to the general concept of [redemption]."
Larsen Beverage
,
¶19 Indeed, the broad language cited by the district court does not expressly waive any of K D A's rights. It acknowledges Pioneer's right to foreclose on the Property, and it recognizes that K D A's rights and interests will be "foreclosed out," "terminated," and "extinguished" upon that foreclosure. In Utah, the foreclosure process includes not only the sale of the relevant property but also the statutory time for redemption.
See
Utah R. Civ. P. 69C(d), (h) (establishing that "[t]he property may be redeemed within 180 days after the sale" and "[t]he purchaser or last redemptioner is entitled to conveyance upon the expiration of the time permitted for redemption"). And during the time for redemption, "a creditor having a lien on the property junior to that on which the property was sold" may redeem the property by paying to the purchaser "the sale price plus six percent."
¶20 Considering the foreclosure process, it is fair to interpret the Agreement's broad language to express that K D A's rights in the Property would not "terminate" until expiration of the time for redemption. Thus, not only does the Agreement fail to explicitly state the parties' intent to waive the right of redemption, but its language is consistent with a contrary interpretation. For waiver to occur, "the party's actions or conduct must evince unequivocally an intent to waive, or must be inconsistent with any other intent."
Mont Trucking, Inc. v. Entrada Indus., Inc.
,
¶21 K D A asserts that the Agreement merely was intended to subordinate K D A's trust deeds, giving Pioneer's trust deeds first priority in the pending foreclosure. This interpretation is reasonable because it "harmoniz[es] all of [the Agreement's] terms and provisions" and gives "an objective and reasonable construction to the [Agreement] as a whole."
See
G.G.A., Inc. v. Leventis
,
¶22 Further, the broad language of the Agreement that Pioneer claims "leaves no doubt that KDA's right of redemption was terminated" is consistent with the mere subordination of K D A's interests in the Property. As K D A notes in its brief, that language simply describes what happens to a subordinated lien holder upon foreclosure. That is, the first priority lien holder is entitled to "foreclose out" and "terminate" the second priority lien holder's rights in the relevant property. But those rights are not terminated until the foreclosure process is complete-that is, when the redemption period expires.
See
Utah Code Ann. § 78B-6-906(1) (LexisNexis 2012); Utah R. Civ. P. 69C(b), (d). Thus, an examination of the Agreement "as a whole,"
see
G.G.A., Inc.
,
¶23 In sum, the Agreement does not show K D A's clear and unmistakable intent to waive its statutory right of redemption. See id . We therefore conclude the district court erred in ruling that K D A waived the right of redemption.
II. Attorney Fees
¶24 K D A asks us to vacate the district court's award of attorney fees to Pioneer. "In Utah, attorney fees are awardable only if authorized by statute or by contract."
Jones v. Riche
,
¶25 Here, the Agreement provides for an award of costs and reasonable attorney fees to the prevailing party in litigation regarding enforcement of any of the Agreement's terms. After the district court ruling in favor of Pioneer, K D A stipulated to Pioneer's award of attorney fees as the prevailing party but reserved the right to challenge that award and seek its own attorney fees if successful on appeal. Because we reverse the district court's ruling and remand for further proceedings, we vacate the award of attorney fees to Pioneer as the prevailing party and instruct the district court on remand to determine whether K D A should be awarded attorney fees as the prevailing party.
CONCLUSION
¶26 The district court erred in ruling that K D A waived its statutory right of redemption under the terms of the Agreement. We therefore reverse and remand this case for further proceedings consistent with this opinion.
Redemption is "the regaining of property by satisfaction of an obligation." Redemption , Webster's Third New Int'l Dictionary 1902 (1993). In Utah, "[s]ales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption," Utah Code Ann. § 78B-6-906(1) (LexisNexis 2012), "by a creditor having a lien on the property junior to that on which the property was sold,"Utah R. Civ. P. 69C(b). To redeem, the creditor must, within 180 days of the sale, pay the purchaser of the property the amount of the purchase at the sale plus six percent. See id. R. 69C(b), (e).
We note that close scrutiny on behalf of the district court is particularly appropriate in cases dealing with an alleged waiver of the right of redemption. As this court has noted, the right of redemption is designed to "provide a check on bids that are well below market value."
Brockbank v. Brockbank
,
Reference
- Full Case Name
- PIONEER BUILDERS COMPANY OF NEVADA INC., Appellee, v. K D a CORPORATION, Appellant.
- Cited By
- 6 cases
- Status
- Published