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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 38666

) ) ) Plaintiffs-Respondents-Cross ) Appellants, ) ) v. ) ) CAROLE BLAZIER-HENRY, an individual, ) ) ) Defendant-Respondent, ) ) and ) ) ROY JACOBSON, ) Intervenor-Appellant-Cross Respondent. ) _______________________________________ )

LEON PHILLIPS, an unmarried man, and EARLINE CHANCE, an unmarried woman,

Boise, February 2013 Term 2013 Opinion No. 45 Filed: April 11, 2013 Stephen W. Kenyon, Clerk SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION FILED ON MARCH 29, 2013 IS HEREBY WITHDRAWN

Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner County. The Honorable Steve Verby, District Judge. The judgment of the district court is reversed and the case is remanded. Featherston Law Firm, Chtd., Sandpoint, for appellant. Brent C. Featherston argued. Bistline Law, PLLC, Coeur d'Alene, for respondents. Arthur M. Bistline argued. _____________________ J. JONES, Justice. This is an appeal from an order setting aside a sheriff's sale of real property. The respondents, Earline Chance and Leon Phillips (collectively "Chance"), who are deed of trust beneficiaries and judgment creditors, failed to attend or bid at the sheriff's sale but claimed the successful bidder, appellant Roy Jacobson, obtained the property for a grossly inadequate price. The district court agreed and set the sale aside. We reverse.

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I. FACTUAL AND PROCEDURAL HISTORY Between February of 2005 and August of 2007, Carole Blazier-Henry executed a series of promissory notes in favor of Chance. The notes were secured by a deed of trust on a less-thantwenty-acre parcel of real property owned by Blazier-Henry in Bonner County. Blazier-Henry failed to make timely payments on the notes, and on March 30, 2009, Chance filed a Complaint for Foreclosure of the deed of trust. Blazier-Henry did not answer the Complaint, and a default judgment was entered against her in the amount of $72,667.25, together with late fees and accrued interest on the principal balance at the rate of 10% per annum. The court issued a Writ of Execution showing the amount owing to be $87,211.07, which included late fees, interest, and attorney fees. Chance levied upon Blazier-Henry's real property to satisfy the judgment. A sheriff's sale was set for June 2, 2009, at 10:00 a.m. in Bonner County. At the sheriff's sale, Jacobson purchased the real property for $1,000. Chance did not appear at the sheriff's sale, either personally or through counsel, and did not submit a credit bid. Chance was represented by attorney Jovick during the foreclosure proceedings, until January 19, 2010, when attorney Bistline substituted in as counsel for Chance. On the date of the sheriff's sale, Jovick's paralegal received a call from the Bonner County Sheriff's Department informing her that the property had sold for $1,000. When the paralegal objected that the "credit bid was around Eighty Seven Thousand," the sheriff's employee responded that "she had nothing in writing regarding a credit bid." In an affidavit subsequently submitted to the district court, Jovick faulted Bonner County for failing to enter a credit bid on behalf of Chance. She asserted that in her experience in Kootenai County, it was common practice for the sheriff to provide a form that could be used by a judgment creditor in requesting a credit bid at a sheriff's sale. In this instance, Bonner County provided her with no such form. On July 22, 2009, Jovick prepared a stipulation to set aside the sheriff's sale, which was signed by Bonner County's civil counsel on November 11, 2009, and entered in the court record on November 17, 2009. The stipulation provided that "[f]or factual reasons that will remain undisclosed, the Bonner County Sheriff's Department and [Chance] hereby stipulate to set aside said sale." The stipulation also provided that the Sheriff and Chance "agree that gross inadequacy of consideration, coupled with very slight additional circumstances is sufficient ground for setting aside the Sheriff's Sale as articulated by the Idaho Supreme Court in Gaskill v. Neil [sic], 77 Idaho

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428 (1956)." Based on the stipulation, the court entered an order setting aside the sheriff's sale on November 20, 2009. On December 30, 2009, Jacobson filed a motion to quash the order setting aside the sheriff's sale and the court quashed the order. Thereafter, Jacobson moved the court to require issuance of the sheriff's deed for the property he purchased at the sheriff's sale. In response, Chance moved the court to set aside the sheriff's sale or, alternately, extend the redemption period. On May 5, 2010, a hearing was held to address the motions submitted by the parties, and on May 19, 2010, the court issued an Order Re: Motion to Set Aside Sheriff's Sale, whereby it set the sheriff's sale aside. Jacobson then filed a motion to reconsider and a motion to amend the court's order. The court issued its decision on January 14, 2011, denying Jacobson's motion to reconsider and granting his motion to amend the court's order to reflect that Jacobson was entitled to all of the money he paid for the property plus attorney fees and costs and any lost profit or business opportunities. On February 9, 2011, the Court entered its Final Judgment. 1 Jacobson appealed to this Court and Chance cross-appealed. II. ISSUES ON APPEAL 1. 2. 3. 4. 5. Did the district court err in setting aside the sheriff's sale? Did the district court err in making its valuation of the property? Did the district court err in granting equitable relief? Is Jacobson's appeal moot because he did not raise the issue of redemption on appeal? Is either party entitled to attorney fees on appeal? III. DISCUSSION A. Standard of Review.

"Whether to set aside an execution sale lies largely within the trial court's discretion." Suchan v. Suchan, 113 Idaho 102, 109, 741 P.2d 1289, 1296 (1986). "Each case depends largely

Of interest is the fact that the Final Judgment says nothing about setting aside the sheriff's sale. The order setting aside the sale was an interlocutory order entered on May 19, 2010. The Final Judgment merely grants a monetary award to Jacobson in the amount of $1,000, representing a return of his purchase money, plus $744.33, representing property taxes he paid on the property, together with prejudgment interest on those amounts and together with attorney fees, costs, and any lost profit or business opportunities "as proven by separate filing."

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on its own peculiar facts; and whether the circumstances, coupled with inadequacy of price, are sufficient to warrant setting aside the sale is a matter largely within the discretion of the trial court." Gaskill v. Neal, 77 Idaho 428, 433, 293 P.2d 957, 960 (1956). In determining whether the district court abused its discretion, this Court asks: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Sirius LC v. Erickson, 150 Idaho 80, 87, 244 P.3d 224, 231 (2010). B. The district court erred in setting aside the sheriff's sale. At the May 5, 2010 motion hearing, the district judge stated that "in balancing the equities, it appears appropriate under these circumstances to set aside the sheriff's sale or allow redemption." The district court found: [U]nder these circumstances and there does not appear to be any issue in terms of these material facts, that a $1,000.00 bid for the real property at issue was grossly inadequate and would be -- would constitute gross inadequacy of consideration. It does appear to be coupled with very slight additional circumstances, those circumstances as being shown from the record, the affidavits. Fourteen days later the district court signed an order submitted by Chance, setting the sale aside. However, the district court's Memorandum Decision on reconsideration, stated: On reconsideration, there does not appear to be very slight circumstances accompanying the gross inadequacy of the price in this instance. Rather, this Court concludes that the disparity between the value of the real property sold and the successful $1,000.00 price paid is so grossly inadequate as to shock the judicial conscience. The district court perceived the issue as one of first impression and indicated that no Idaho case law appropriately addressed the circumstances at hand. As a result, the court looked to 5 A.L.R. 4th Inadequacy of Price as Basis for Setting Aside Execution or Sheriff's Sale

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