Swartz v. Adams ( 1977 )

Thompson, J.,

dissenting:

The issue presented to this court is not as stated in the majority opinion.¹ The constitutional problem of procedural due process in effectuating execution sales is not before us. That issue has been abandoned. Only the claim of Violet Swartz to recover damages for an alleged fraud is tendered. Consequently, the predicate of the majority opinion does not exist, and all discussion therein premised upon Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), is not relevant to our review.

Mr. Adams, a Nevada attorney, represented Violet Swartz and her husband Richard in certain litigation. That professional relationship was terminated by Richard Swartz in June 1964. The Swartzes then owed Adams an agreed fee of $5,000 for services rendered. That fee was not paid. In 1968, Adams obtained judgment therefor and satisfied the same through execution upon two parcels of unimproved real property owned by the judgment debtors. Adams was the highest bidder at the sheriff’s sale and received a certificate of sale which he recorded March 20, 1969. On March 31, 1970, the sheriff executed and delivered his deed to Adams which was duly recorded on April 2, 1970. No effort was made by the Swartzes to redeem the property within the statutory period. Mr. Swartz since has died.

The execution sale fully complied with our statutory law. Violet Swartz has abandoned her effort to set aside the execution sale, and seeks only damages for an alleged fraud.

No basis for the charge of fraud appears in this record. Adams, as a judgment creditor, did only that which he was authorized to do. The contention that he was precluded from causing property to be sold to satisfy his judgment because of the prior attorney-client relationship is unsound. Indeed, supportive authority is not offered. An attorney may satisfy his judgment in the same manner as other judgment creditors. His decision to do so according to statutory law obviously cannot be the predicate for a charge of fraud.

Although it is claimed that the price bid by Adams for the property was grossly inadequate, the record is wholly unsatisfactory as to the value of the land.

Moreover, inadequacy of price standing alone does not tend to establish fraud. Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963); Brunzell v. Woodbury, 85 Nev. 29, 449 P.2d 158 (1968); Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P.2d 462 (1971). Thus, if one were inferentially to conclude that an inadequate price was paid, a claim of fraud still is without foundation. For these reasons,' I would affirm the summary judgment entered below and, therefore, respectfully record my dissent from today’s opinion.

1 Appellant’s opening brief states:

“This action was originally brought by Appellant Violet Swartz to set aside certain execution sales after the redemption period had run. Appellant has also asked for compensatory and punitive damages, and it is this money relief which Appellant seeks exclusively now.

“Respondent Herman M. Adams (hereinafter “Respondent Adams”) obtained a judgment for attorney’s fees against Appellant and her now deceased husband and levied execution thereon. Respondent Adams then, by bidding in parts of his judgment, purchased certain personal and real property formerly belonging to Appellant. When Appellant failed to redeem within the statutory period, Respondent Adams conveyed the real property he had purchased to two local realtors, Marshall S. Ashcraft and Mary Bartsas, in separate conveyances.

“Appellant’s action sought to have the deeds to Ashcraft and Bartsas set aside, but although originally named as Defendants herein, both were dismissed as parties to the suit. Neither of these Orders is appealed.”