Aune v. B-Y Water Dist.

• Citation: 505 N.W.2d 761
• Decision Date: 21 April 1993
• Docket Number: B-Y,No. 18102,18102
• Parties: Steven F. AUNE and Karen A. Aune, husband and wife, Plaintiffs and Appellants, v.WATER DISTRICT, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 761

505 N.W.2d 761

Steven F. AUNE and Karen A. Aune, husband and wife, Plaintiffs and Appellants, v. B-Y WATER DISTRICT, Defendant and Appellee.

No. 18102.

Supreme Court of South Dakota.

Considered on Briefs April 21, 1993.

Decided Sept. 1, 1993.

Paul Spizzirri, Tyndall, Larry F. Hosmer of Kabeiseman, Hosmer & Kettering, Yankton, for plaintiffs and appellants.

Thomas E. Alberts, Avon, for defendant and appellee.

WUEST, Justice.

Steven and Karen Aune (Aunes) appeal a summary judgment for B-Y Water District (the District) in their action against the District for unjust enrichment and intentional infliction of emotional distress. We affirm.

FACTS

It is important to resolution of this matter to recognize the existence of two separate judgments involved in this appeal. On December 2, 1988, Tabor Plumbing and Electric (Tabor), a party uninvolved in the instant case, obtained a judgment against Aunes in the amount of $1,614.06. Tabor's judgment was related to the costs of some services it had provided in installing a septic tank for Aunes. On March 23, 1989, the Yankton County Clerk of Courts issued a writ of execution on Tabor's judgment.

On May 8, 1989, Aunes obtained their own judgment against the District in the amount of $12,999.10. Aunes' judgment resulted from the District's failure and refusal to provide certain water services to Aunes. On May 11, 1989, the Yankton County Sheriff, acting pursuant to the writ of execution issued on Tabor's judgment, levied on Aunes' judgment against the District.

On June 5, 1989, the District filed a notice of appeal and supersedeas bond in connection with an appeal of Aunes' judgment. On June 15, 1989, the Yankton County Sheriff published notice of the execution sale of Aunes' judgment. Michael Williams (Williams), the District's general manager, saw the notice of sale in a local newspaper. Williams called the District's attorney to ask if anyone could purchase the judgment at the execution sale. Based upon the attorney's advice, Williams appeared at the public auction of Aunes' judgment on June 26, 1989. The only persons present for the auction were Williams, the District's attorney, a deputy sheriff and Steven Aune. Williams, acting on the District's behalf, was the only bidder. Acting through Williams, the District purchased Aunes' judgment for the sum of $2,500.

On December 5, 1990, this Court affirmed Aunes' judgment against the District. See, Aune v. B-Y Water Dist., 464 N.W.2d 1 (S.D.1990). On August 2, 1991, Aunes served the District with a summons and complaint for unjust enrichment and intentional infliction of emotional distress. Aunes sought both actual and punitive damages for the District's allegedly unlawful purchase of Aunes' judgment. The District answered Aunes' complaint and, on May 8, 1992, filed a motion for summary judgment. A hearing on the motion was conducted on July 30, 1992.

During the summary judgment hearing, Aunes argued that their judgment against the District was unlawfully sold in violation of the supersedeas bond the District had filed when it appealed the judgment. Aunes asserted that the filing of the supersedeas bond should have had the effect of staying the sale of the judgment at the execution sale.

On August 11, 1992, the circuit court entered a memorandum opinion rejecting Aunes' argument. On August 19, 1992, the circuit court entered a summary judgment for the District and dismissed Aunes' complaint for failure to state a cause of action on which relief could be granted. Aunes appeal.

ISSUE

DID THE CIRCUIT COURT ERR IN GRANTING SUMMARY JUDGMENT FOR

THE DISTRICT?

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D.1989) (citations omitted).

There is generally no dispute between the parties over the pertinent facts. The issue in this case focuses solely on the legality of the execution, levy and sale of Aunes' judgment against the District in order to satisfy Tabor's judgment against Aunes. In that regard, Aunes again contend that the District's filing of the supersedeas bond in connection with its appeal of Aunes' judgment should have stayed the execution sale of that judgment. We disagree.

At the outset, it is clear that South Dakota law does permit the execution, levy and sale of a judgment as an asset in order to satisfy an earlier judgment. SDCL 15-18-17 in the chapter on execution of judgments describes the property subject to levy on execution:

All property and interests therein and rights appurtenant thereto, tangible or intangible, including shares or interests in any corporations, credits, choses in action, and whether capable of manual delivery or not, belonging to the party against whom the execution was issued, and not exempt by law may be taken on execution and sold or otherwise applied to the satisfaction of the judgment as provided by law.

Moreover, SDCL 15-18-21 specifically outlines the procedure for levying on a judgment:

A levy under a writ, warrant, or execution upon a judgment, must be made by serving a notice of levy upon the clerk of the court in which it is docketed, describing the judgment by the title of its action, date, amount, book, and page of docketing, and by mailing copies of such notice of attachment by registered or certified mail to the judgment debtor, and the present owner of the judgment as shown by the docket, and to their attorneys of record, if any, at their last known post-office addresses.

Based upon the above provisions, it is clear that Tabor was acting within its rights in levying on Aunes' judgment against the District as a means of satisfying its own judgment against Aunes. Insofar as whether the District's filing of the supersedeas bond in connection with its appeal of Aunes' judgment stayed Tabor's ability to levy on that judgment, SDCL 15-26A-32 defines the matters stayed with the filing of such a bond:

When an approved supersedeas bond is filed it shall stay all further proceedings in circuit court upon the judgment or order accordingly, except that the circuit court may proceed upon any other matter included in the action, not affected by the judgment or order appealed from. (emphasis added).

This court further defined the scope of application of a supersedeas bond in Wentzel v. Huebner, 78 S.D. 471, 473-74, 104 N.W.2d 476, 477 (1960):

The effect of such undertaking is to suspend further proceedings pending determination of the appeal. Janssen v. Tusha, 67 S.D. 597, 297 N.W. 119 [ (1941) ]. By this means the status quo of the matter is preserved.

It is the intent of our statute that the privilege of suspending the execution of such judgment is that of the party entitled to appeal. State ex rel. Sholseth v. Knight, 52 S.D. 572, 219 N.W. 258 [ (1928) ]. The liability with which it is concerned is that of the appellant. (emphasis added).

The above provisions make clear that the only execution of judgment stayed by the filing of a supersedeas bond is the execution of the judgment under appeal. It is the liability of the judgment debtor on that judgment with which the supersedeas bond is concerned because it is that judgment debtor who holds the privilege of suspending the execution of the judgment appealed.

Applying these principles in the instant case means that Aunes were clearly precluded from executing on their judgment against the District because the District, the judgment debtor on that judgment, appealed the judgment and filed a supersedeas bond in connection with the appeal. This is of no assistance to Aunes, however, because it was not the execution of Aunes' judgment against the District that led to the sale of that judgment. The judgment was sold because Tabor executed on its earlier judgment against Aunes. There is no indication in the record that Aunes, the judgment debtors on that judgment, appealed the judgment or obtained a supersedeas bond in connection with any such appeal. Thus, there was nothing to stay Tabor's ability to execute on its own judgment against Aunes by levying on Aunes' judgment against the District. Aunes' judgment was merely an asset held by Aunes that was used to satisfy Tabor's judgment, an action clearly countenanced by the previously referenced statutes on executions.

Aunes do cite various authorities for the proposition that a judgment debtor is precluded from purchasing a judgment against itself while the matter is on appeal. However, none of the authorities cited by Aunes support that proposition. Aune v. Breneman, 74 S.D. 324, 52 N.W.2d 483 (1952) was an appeal in a foreclosure action. The issue was whether the appeal and undertaking for a stay of execution extended the redemption period allowed by the judgment of foreclosure. There is nothing in the decision concerning the ability of a judgment debtor to purchase a judgment against itself during the pendency of an appeal of the judgment. The same is true with regard to Edge v. Harsha, 334 N.W.2d 741 (Iowa 1983). The issue in Edge was whether a judgment lien against real property could be discharged where the judgment debtor furnished a supersedeas bond pending an appeal of the judgment. In Rhoades v. State Real Estate Commission, 153 Neb. 625, 45 N.W.2d 628 (1951), the issue was whether the time of commencement of a period of...