Summary 2008 WY 116

Summary of Decision issued October 6, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Mary’s Bake Shoppe v. City of Cheyenne

Citation: 2008 WY 116

Docket Number: S-07-0243

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant: Cary R. Alburn, III of Cary R. Alburn, III, PC, Ft. Collins, Colorado.

Representing Appellee: Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

Facts/Discussion: Mary Coonts owned and operated a business known as Mary’s Bake Shoppe. She also owned the building housing her business. In 2004, the building was severely damaged by fire. The City determined the fire-damaged building posed a hazard to people’s health and safety and notified Coonts that it was condemning the building. Shortly after Coonts received the first notice of condemnation, the City decided the building’s condition had deteriorated to the point where it posed an immediate threat and would have to be demolished on an emergency basis. Since Coonts has not contacted the City regarding demolition, the City hired its own contractor. The City held Coonts accountable for the costs of demolition and removal of her building. Coonts failed to pay the costs leading the City to file the instant action.

Legal Framework: The City has adopted the 2003 International Property Maintenance Code (IPMC). The IPMC created a department of property maintenance inspection, which is overseen by a “code official.” The official is responsible for conducting property inspections and issuing notices and orders as required under the IPMC. Under normal circumstances, the IPMC gives the owner of a building subject to a demolition order the right to institute an administrative appeal within twenty days after service of the demolition order. However, if the order is issued as a result of an emergency, the appeal if requested is afforded after the demolition of the building.
Propriety of Summary Judgment: The undisputed evidence was that Coonts’ building was completely destroyed by fire. To the extent she argued her building did not need to be razed, her argument was rejected. Coonts was aware of the need to demolish her building when she was informed of the building’s condition at a property owners meeting. By the end of January 2005, she had two bids for demolition but had accepted neither.
The official condemnation order was superseded by the emergency order. The Court stated it was irrelevant to the discussion. Emergency demolition of the building was ordered and all appropriate action was taken as required by the IPMC, including sending a new Notice and Order to Coonts. Coonts strongly contended the condition of her building did not warrant emergency demolition but submitted no evidence in support of her contention. The Court stated that the City was not required to follow the mandates of Wyo. Stat. Ann. § 15-1-113 because it did not apply to the instant situation.
The action of hiring Spiegelberg Lumber and Building Co. to undertake the demolition and removal of Coonts’ building was reasonable. Coonts’ contention that Spiegelberg did not complete its work in accordance with the conditions of the contract was not supported by the evidence. The Court stated that the invoice from Spiegelberg was adequate to sustain the final charge and justify the City’s payment. Coonts next attacked the lien. The IPMC required the City to pay emergency demolition costs and created an automatic lien against the property for the recovery of such costs. No filing was necessary to validate the lien as between the City and Coonts.
Discovery: Coonts requested production of all investigative reports in the possession of the City regarding the causation of the fire that destroyed her building, whether originated by city employees or others. The City filed a motion for a protective order on the grounds that the documents related to an on-going criminal investigation. The Court agreed with the district court that the documents contained no relevant information. Even if there was any error on the part of the district court in protecting the documents from discovery, it was harmless.
Legal Action: Coonts argued to dismiss the case as to “Mary’s Bake Shoppe”. The Court agreed it was redundant to sue Coonts both individually and as Mary’s Bake Shoppe. However, the judgment was unaffected. There was one judgment and it was against Coonts. Coonts also objected that the City did not plead a recognized cause of action for the recovery of money. The IPMC created the debt. It also created the authority to recover the debt. The cause of action was properly identified as arising under the IPMC.

Holding: Both counts were properly based on the language and authority of the International Property Maintenance Code which has been adopted by the City. The summary judgment in favor of the City and the foreclosure of the cost-of-demolition lien is affirmed.

Affirmed.

J. Golden delivered the decision.

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