Grand River Dam Authority v. Eaton

1990 OK 133, 803 P.2d 705, 62 O.B.A.J. 44, 1990 Okla. LEXIS 155, 1990 WL 211392

• Court: Supreme Court of Oklahoma
• Decided: December 26, 1990
• Docket: 75022
• Status: Published

Opinions

LAVENDER, Justice.

The question we decide here is whether an appeal should be deemed moot and subject to dismissal when during the pendency of the appeal to reverse a money judgment the judgment debtor, rather than either obtaining a stay of the judgment or filing a supersedeas bond as allowed by 12 O.S. 1981, § 968, pays the final judgment because the debtor is deemed to have acquiesced in the judgment by paying it. The trial court, acting as our Special Master, being presented with no valid basis for Appellants’, Don E. and Nadja L. Eaton’s, failure to obtain a supersedeas bond (e.g. financial inability) ruled payment of the judgment was voluntary even though the outstanding judgment could expose Appellants’ real and personal property to execution and possibly ultimate sheriff’s sale. It ruled payment was not coerced or involuntary because Appellants did not show unavailability of another immediate avenue of staying execution on the judgment while the appeal was pending, i.e. posting super-sedeas bond. We hold normally only when payment of a final judgment is made under circumstances showing it is made to settle or compromise the matter and, thus, to abandon the right to appeal or when payment somehow makes it impossible for effective relief to be granted upon reversal of judgment should the appeal be deemed moot and subject to dismissal. We believe this view is in keeping with enlightened jurisprudence, it will promote the payment of final judgments and it has the support of other jurisdictions. See Franzen v. Dubinok, 290 Md. 65, 427 A.2d 1002 (Md.1981); See also Martin Development Co. v. Keeney Constr. Co., 216 Mont. 212, 703 P.2d 143 (1988); “Defeated party’s payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal”, 39 A.L.R.2d 153 (1955).

From our review of the record the payment was not made to compromise or settle the matter and there is no basis for concluding effective relief cannot be granted if the judgment is reversed. Upon reversal the money could simply be ordered returned to Appellants. We, thus, deny a motion to dismiss the instant appeal filed by Appellee, Grand River Dam Authority.

In 1983 Appellee obtained a money judgment against Appellants.¹ The judgment apparently consisted of an overpayment of a commissioners’ award in a land condemnation case which had been paid into court and withdrawn by Appellants. A writ of execution issued in 1985, but was returned “no property found”. Apparently nothing much happened in the matter until 1989 when Appellants were served with an order to appear and answer as to assets. At such time Appellants filed motions with the trial court arguing the initial execution in 1985 was ineffective to keep the judgment alive because Appellee had interfered with the execution by instructing the sheriff to put on the 1985 writ of execution “no property found” even though no effort had been made to determine whether property existed to satisfy the judgment. The trial court denied the motions and found the judgment vital. Motions to vacate and reconsider were filed which were denied on February 1, 1990. On February 2, 1990, a new writ of execution was issued. The record we have been provided shows on February 16, 1990, Appellants filed a tender of judgment pursuant to 12 O.S. Supp.1983, § 706.2 in the sum of $47,008.80 with the court clerk apparently in an attempt to secure release of the money judgment as a lien on a farm owned by them in Rogers County. Notice of appeal was given therein and a petition in error was filed in this Court on February 20, 1990.

The testimony at the hearing before the Special Master appears to show Mr. Eaton began receiving phone calls from a deputy sheriff informing him about the new execution some time in February 1990 and that if the matter was not taken care of his property would have to be sold, including the farm. The record also shows on February 26, 1990, Appellee filed a request for additional cash deposit pursuant to 12 O.S. Supp.1983, § 706.3, arguing the money already tendered was insufficient to cover costs and interest on appeal. The request asked for another $15,160.00 to be deposited. On or about March 9, 1990, Appellants responded to the request by filing a document indicating their tender under § 706.2 could be construed as receipt by the court clerk as satisfaction of judgment and costs under 12 O.S.1981, § 27. On April 18, 1990, an order of disbursement of the funds to Appellee was entered and approved of as to form by counsel for Appel-lee and Appellants. The money was disbursed and Appellee filed a release and satisfaction of judgment.

The testimony at the hearing before the Special Master, further showed that although an appointment was made by Appellants’ attorney for Mr. Eaton to see a surety to obtain a supersedeas bond the appointment was never kept. The testimony seemed to show it was not kept because Mr. Eaton was confused by the whole situation and became scared about the apparent threat to his farm because of the call(s) from the deputy sheriff. It appeared he became fixated by the thought of losing his farm because of the debt. No conclusion can be drawn from the record that Appellants were financially unable to procure a supersedeas bond, nor any firm conclusion that they ever intended to abandon their appeal. What appears from the record was that Mr. Eaton was concerned about losing the farm.

The record in this case, the arguments of the parties and the ruling of the trial court have unearthed apparent confusion in our law as to when exactly the payment of a judgment by a judgment debtor will subject the appeal to dismissal as moot because such payment is deemed to be an abandonment of the appeal. We take this occasion to clear up any confusion and to set forth a rule which in most circumstances will end in the appeal being dismissed only when payment is intended to compromise or settle the matter and to relinguish the right to appeal.

Under our present law it appears the record here would be sufficient to dismiss the appeal because there was no showing of an inability to procure a supersedeas bond. See Lucas v. First National Bank of Pawnee, 171 Okla. 606, 43 P.2d 752, 753 (Okla.1935) (dicta to effect that one who pays judgment without some showing of financial inability to procure supersedeas bond waives right to appeal); Bush v. Aetna Building & Loan Ass ’n, 51 Okla. 529, 151 P. 850 (Okla.1915) (motion to dismiss appeal as moot denied where appellants paid judgment to prevent sale of property under execution, but submitted uncontro-verted affidavit showing financial inability to post supersedeas bond); Pixley Lumber Company v. Woodson, 556 P.2d 596 (Okla.1976) (acquiescence in judgment implied where partial payment made and no supersedeas procured); Wallace v. Boston Mutual Life Insurance Company, 197 Okla. 468, 172 P.2d 629 (Okla.1946) (payment of judgment impliedly shows acquiescence in judgment on part of debtor).

Either the holdings of the above cases or certain language therein can be contrasted with cases such as Guin v. Security State Bank, 74 Okla. 102, 168 P. 804 (Okla.1917), where this Court held “[a] payment of a judgment to prevent sale under execution or order of sale is not a voluntary satisfaction of the judgment [and] ... cannot be construed as a release of errors assigned on appeal.” Id. 168 P. at 805. It is noted in Guin that no supersedeas bond was procured and no discussion is had in the opinion as to inability of the judgment debt- or to post same.

There are also cases such as Bateman v. Riner, 170 Okla. 13, 38 P.2d 581 (Okla.1934), Duncan v. Ratcliff, 63 Okla. 19, 161 P. 1174 (Okla.1916) and Tinker v. McLaughlin-Farrar Co., 29 Okla. 758, 119 P. 238 (Okla.1911), which stand for the generally recognized rule that where pending appeal there is a satisfaction of the judgment the appeal will be dismissed as moot because only abstract or hypothetical questions are presented. These latter opinions are extremely brief and it appears that in all of them no response or objection was made to the motion to dismiss the appeal. In fact, Tinker, supra relied on Reece v. Chaney, 28 Okla. 501, 114 P. 608 (Okla.1911), a case where the appeal was dismissed because the record showed affirmatively it was settled pending appeal. In our view, these latter four cases appear to be uncontested situations where the judgment and, thus, appeal along with it, was deemed settled by the parties.

There is also the case of Tara Oil Co. v. Kennedy & Mitchell, Inc., 622 P.2d 1076 (Okla.1981), a case which really has little resemblance factually to the situation here, but contains patently incorrect dicta purportedly based on Bush v. Aetna Building & Loan Ass’n, supra, to the effect that Bush held “it was not an involuntary payment (under duress) for the judgment debt- or to pay a judgment he had appealed simply because he was not financially able to make supersedeas.” Tara, supra, at 1077. Bush did not so hold. Bush was a case where the appeal was not dismissed when the appellants there filed an uncon-troverted affidavit showing financial inability to post a supersedeas bond and paid a judgment in order to prevent loss of certain property by sale under execution. The real rule in Tara is that a party cannot at the same time accept the benefits of a judgment and attack it on appeal, a situation not involved here. There the appealing party accepted a cash bonus under an Oklahoma Corporation Commission order while at the same time attacking on appeal the validity of an earlier pooling order on notice grounds. Here, Appellants have accepted no benefit from the judgment, they have merely paid it after an execution had issued and after receiving telephone calls from a deputy sheriff which led them to believe their farm would be sold if the execution remained outstanding.

Other jurisdictions have delineated various contradictory tests to make a determination of whether an appeal should be dismissed when a judgment debtor has paid a monetary judgment. “Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal”, 39 A.L.R.2d 153, supra. Some find the judgment alone sufficient legal compulsion so that payment thereafter in the normal circumstance will not be deemed a ground for dismissal of the appeal. See Franzen v. Dubinok, supra, 427 A.2d at 1005. Others seem to place added reliance on the fact execution has issued and a judgment debtor by paying the judgment is attempting to protect his property from seizure and sale. See “Defeated party’s payment, etc.”, 39 A.L.R.2d at 166-167. Oklahoma appears to be aligned with cases in this latter category on the basis of Guin, supra, 168 P. at 805. However, as noted above our cases also seem to stand for the rule that in the absence of a showing of some valid reason why a supersedeas bond is not procured to stay the effectiveness of a judgment and, thus, its collection, payment by the judgment debtor will be deemed acquiesence in the judgment sufficient to compel dismissal of the appeal. See Pixley Lumber Company, supra, 556 P.2d at 597-598; Lucas, supra, 43 P.2d at 753 (dicta); Bush, supra, 151 P. at 851 (factual underpinnings).

We now reject any rule that we have previously espoused that would require dismissal of an appeal merely on the basis that a judgment debtor pays a final and appealable judgment that could subject his property to execution and ultimate sale. Our rejection applies whether or not execution has issued. We also reject the view that payment coupled with a failure to show inability to post a supersedeas bond somehow subjects an appeal to dismissal on mootness grounds. In our view failing to post a supersedeas bond is immaterial to the question in the normal circumstance for the reason our case law makes clear the posting of a supersedeas bond is neither a prerequisite nor a jurisdictional requirement to an appeal. Adams v. Unterkircher, 714 P.2d 193, 196 (Okla.1985).

Our views on the instant situation were well expressed by the New York Court of Appeals over 100 years ago:

The defendant’s practice of paying the judgment before appealing from it is not to be condemned. It is rather to be encouraged. A party who recovers at the trial term ... might fairly be deemed entitled to the fruits of his action without further delay. The law, however, allows [an] appeal; but, although it is taken, the successful party may nevertheless enforce his judgment by execution, and so collect its award, unless the defeated party secures its ultimate payment by a deposit of money or an undertaking. Why may he not simplify the matter by placing the funds at once in the hands of the party who, if the appeal fails, will be ultimately entitled to them? By doing so he will save the cost of execution, and do no harm to his creditor. We think he should not, by a temporary submission to the decision of the court, be placed in a worse position than if he had awaited execution and settled it with sheriffs fees.

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[I]t must be deemed too well settled by authority to require further discussion that a party against whom a judgment has been rendered is not prevented from appealing to this court by the fact he has paid the judgment, unless such payment was by way of compromise, or with an agreement not to take or pursue an appeal. Hayes v. Nourse, 107 N.Y. 577, 14 N.E. 508, 508 (1887) (citations omitted).

We therefore hold that unless the payment of a final judgment by a judgment debtor is shown to be made with the intent to compromise or settle the matter and, thus, to abandon the right to appeal or the payment in some way, not involved here, makes relief impossible in case of reversal, the payment will not be deemed to either waive the right to appeal or moot the controversy.² To the extent language in the cases of Pixley Lumber Company, Wallace, Lucas, Bush and Tara Oil Co., supra, are inconsistent with our holding here such language is expressly disapproved. Accordingly, Appellee’s motion to dismiss the instant appeal is DENIED consistent with the views expressed herein.³

HARGRAVE, C.J., and HODGES, DOOLIN and SUMMERS, JJ., concur. OPALA, V.C.J., and SIMMS and KAUGER, JJ., concur in part; dissent in part.

1 . Nothing in this opinion should be construed to express any view of this Court as to the merits of the issues raised as error by Appellants in their Petition in Error. The factual matters set out in the opinion are merely set forth so that an appropriate disposition may be made of the Appellee’s motion to dismiss the appeal.

2 . The case of Adams v. Unterkircher, 714 P.2d 193, 196 (Okla.1985), in addition to its recognition that posting a supersedeas bond is neither a prerequisite nor jurisdictional requirement to an appeal, also stands for the proposition, as earlier expressed in Bras v. Gibson, 529 P.2d 982 (Okla.1974) and the correct holding contained in Tara Oil Co. v. Kennedy & Mitchell, Inc., 622 P.2d 1076 (Okla.1981) (see text for discussion of incorrect dicta), that acceptance of the benefits of a judgment does indeed waive the right to appeal and seek reversal. When the appealing party accepts the benefits of a judgment and at the same time seeks to reverse detrimental parts of it the inconsistency of such conduct is generally apparent. Normally, in such a situation the appeal should be dismissed because such acts are fatally inconsistent with proper appellate procedure. See Adams, supra at 196. The situation involved here does not involve the acceptance of any benefits from a judgment by the appealing party, but merely payment of the judgment to shield against the potential adverse consequences that come from a monetary judgment, e.g. execution and possible sale of the debtor’s property. The rule we fashion here, thus, does not alter our position with respect to an appealing party that has accepted the beneficial parts of a judgment and at the same time seeks to reverse detrimental portions thereof.

3 . On July 24, 1990 Appellants filed a motion to strike and correct record which appears to be a request to this Court to not consider two documents which were attached to Appellee’s July 13, 1990 brief in response to Appellants’ brief in support of Appellants’ exception to order certifying judgment as voluntarily satisfied. We deem said motion moot for the reason consideration of the two exhibits does not alter our ruling that the instant appeal is not subject to dismissal.