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Simek v. Tate

May 24, 2010

RONALD L. SIMEK, APPELLANT (PLAINTIFF),
v.
STACY TATE, ADMINISTRATOR OF THE ESTATE OF CAROL B. BREHM, DECEASED, APPELLEE (DEFENDANT).



Appeal from the District Court of Park County, The Honorable Keith G. Kautz, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice.

Before VOIGT, C.J., and HILL, KITE, and BURKE, JJ., and CAMPBELL, D.J.

[¶1] This is an appeal from a district court order enforcing an oral settlement agreement requiring the appellant (Simek) to purchase certain real property from the appellee (the Estate).*fn1 We conclude that the district court did not err in determining that partial performance by the Estate made the settlement agreement enforceable despite the statute of frauds, and we therefore affirm.

ISSUES

[¶2] 1. Did the district court err in denying Simek‟s motion for an additional "live" evidentiary hearing, and holding a telephonic hearing instead?

2. Did the district court err in denying Simek‟s motion to enforce an earlier settlement agreement?

3. Did the district court err in granting the Estate‟s motion to enforce the settlement agreement despite the statute of frauds?

FACTS

[¶3] In 1993, Simek purchased from Carol Brehm (Brehm) certain ranch property located in Park County, Wyoming. Brehm reserved from that sale her residence and the acreage surrounding her residence, but gave Simek the "first right to purchase" the property if she decided to sell it. Brehm died in Illinois in 1994, without having indicated any desire to sell her residence, and, therefore, without Simek‟s option to purchase having been exercised.

[¶4] On October 19, 1998, Simek filed in Park County a civil action against Michael A. Alexander (Alexander), as executor of Brehm‟s estate in Illinois. Simek alleged that Brehm had breached the ranch sale contract in certain particulars, and he sought specific performance of the purchase option. Count II of the Complaint was later amended so as also to seek declaratory judgment in regard to the purchase option. On April 20, 2001, the district court dismissed Count II on the ground that the purchase option was specifically conditioned upon Brehm exhibiting her desire to sell the property, and that she had not done so.

[¶5] Litigation between Simek and the Estate continued until, after participating in mediation, they reached a settlement agreement in August of 2003 (the 2003 Agreement), which agreement was reduced to writing and executed by the parties. In addition to settling the contract breach issues, the 2003 Agreement provided for Simek‟s purchase of Brehm‟s residential property. The 2003 Agreement was, however, conditioned as follows:

3. Approval of Illinois Probate Court. The parties understand that approval by the Illinois Court conducting the probate of Carol Brehm‟s Estate is required for approval of this Settlement Agreement. Mr. Alexander, on behalf of the estate and the Brehm Parties, has agreed that he will advise the Illinois Probate Court of the settlement of these claims and will seek the approval of the Illinois Probate Court of these terms and file all necessary documents and pleadings with the Illinois Probate Court reflecting said approval.

[¶6] On January 28, 2005, Simek filed a Motion to Enforce Settlement Agreement, in which he alleged that he, but not the Estate, had taken all necessary steps to implement the settlement. The Estate responded on February 17, 2005, attaching to its response a copy of an order from the Illinois Probate Court denying the petition for approval of the settlement. The motion not having been heard, Simek refiled it on April 28, 2005, and again on May 2, 2005. On May 26, 2005, the district court set the motion for hearing. In the meantime, Brehm‟s daughter, Stacy Tate (Tate) obtained appointment as administrator of her mother‟s estate in Wyoming, and on June 27, 2005, the parties stipulated that she be substituted for Alexander as the defendant in this lawsuit.

[¶7] On July 25 and 26, 2005, Simek and Tate and their Wyoming attorneys met in Cody, Wyoming, for settlement negotiations. Believing settlement had been achieved, Tate‟s attorney drafted a Settlement Agreement and Release of All Claims (the 2005 Agreement). The scope of the 2005 Agreement was relatively similar to that of the 2003 Agreement, although the purchase price for the Brehm residential property was different. The 2005 Agreement contained a provision requiring its approval by the probate courts in both Wyoming and Illinois, and it also contained the following relevant provisions:

5. REAL PROPERTY IS BEING CONVEYED "AS IS". SIMEK acknowledges that the real property described in Paragraph Two herein is being conveyed "AS IS". SIMEK acknowledges that he is informed that there are multiple problems with said real estate (including, but not limited to the house on the real property), and that he accepts the PROPERTY "AS IS".

6. KEY TO PROPERTY. SIMEK acknowledges that he has received the key to the PROPERTY in order to make plans for renovation of the PROPERTY. SIMEK agrees, however, that he will return the key if the probate courts in Illinois and Wyoming do not approve of the settlement. SIMEK further agrees that he will make absolutely no changes to the PROPERTY until he makes payment for the PROPERTY as outlined in Paragraph Three herein. SIMEK also agrees to keep the PROPERTY locked at all times. SIMEK also acknowledges that the alarm, for which he has received information, is not the property of the ESTATE OF BREHM, and it must be returned to the alarm company at closing.

[¶8] Simek received the key to the Brehm residence, and kept it for several months. During that period of time, he accessed the premises and had it appraised, but he neither signed the 2005 Agreement nor indicated that he rejected it. Eventually, his attorney sent the Estate‟s attorney an offer to purchase the property for a lower price than that stated in the 2005 Agreement. What ensued was a motions duel, with Simek repeatedly asking the district court to enforce the 2003 Agreement and the Estate repeatedly asking the district court to enforce the 2005 Agreement.*fn2 Finally, the case was assigned to a different district judge, who held an additional evidentiary hearing on September 30, 2008.

[¶9] The district court issued its Findings of Fact and Conclusions of Law Enforcing Terms of Settlement Agreement on December 19, 2008. In summary form, relevant findings included the following: (1) the 2003 Agreement required approval of the Illinois Probate Court to be effective, and such approval was denied; (2) Simek‟s testimony that he obtained the key to the residence under the 2005 Agreement for the purpose of a two-week period in which to inspect the premises was not credible; (3) Simek obtained the key to the residence under the 2005 Agreement for the purpose of planning its remodeling; (4) Simek obtained and kept the key until January 2006, during which period he had complete access to the premises and invited many contractors and an appraiser into the residence; (5) under the 2005 Agreement, Simek offered to purchase the property "as is"; and (6) neither Simek nor his attorney notified Tate that the settlement had been rejected.

[¶10] Based upon these and other findings, the district court reached the following relevant conclusions of law: (1) the 2003 Agreement was rendered void when the Illinois Probate Court disapproved it; (2) the parties agreed to settle in 2005, with the terms of the settlement being those set forth in the 2005 Agreement; (3) delivery of the key to the premises to Simek, and his use thereof, constituted such partial performance of the oral 2005 Agreement so as to render it enforceable despite the statute of frauds; and (4) Simek‟s silence, failure to object to the agreement, and failure to notify the court that settlement had not been reached justified precluding Simek from raising the statute of frauds as a defense and justified affirming the oral 2005 Agreement.

STATUTE OF FRAUDS

[¶11] Wyo. Stat. Ann. § 1-23-105 (LexisNexis 2009) provides in pertinent part as follows:

(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

....

(v) Every agreement or contract for the sale of real estate, or the lease thereof, for ...


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