Franzen v. Dubinok, 70

• Decision Date: 07 April 1981
• Docket Number: No. 70,70
• Citation: 290 Md. 65,427 A.2d 1002
• Parties: Marvin C. FRANZEN v. Edward Robert DUBINOK.
• Court: Maryland Court of Appeals

Page 65

290 Md. 65

427 A.2d 1002

Marvin C. FRANZEN v. Edward Robert DUBINOK.

No. 70.

Court of Appeals of Maryland.

April 7, 1981.

George R. Sparling, Leonardtown (Raley & Sparling, P. A., Leonardtown, on brief), for appellant.

No brief filed.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

We are in this case called upon chiefly to determine whether a judgment debtor, who fully satisfies the adjudication against him by payment of the award, is barred by this action from prosecuting an appeal from that judgment. Although we disagree with the reasoning of the Court of Special Appeals, we shall affirm that court's dismissal of a portion of the appeal since we conclude that the petitioner is precluded by his conduct from obtaining review of the issues there raised.

The respondents here, Edward and Henrietta Dubinok, commenced this law action on March 8, 1978, in the Circuit Court for St. Mary's County against petitioner Marvin Franzen charging by separate counts trespass and the creation of a private nuisance caused by artificial channelization, with the consequential increased flow, of surface water from Franzen's property on to that of the Dubinoks. The suit seeks compensatory and punitive damages as well as Maryland Rule BF40 ancillary injunctive relief. At the trial of the monetary claim, the jury returned a verdict for the Dubinoks on September 8, 1978, assessing $4,000 compensatory and $7,000 punitive damages. The petitioner thereafter paid in full this award, and respondents filed an order of satisfaction prior to a judgment on the verdict being entered by the trial court. After a hearing was later scheduled to consider the prayer for equitable relief, the petitioner sought leave to file in the injunctive portion of the proceedings a third party claim against the Board of County Commissioners of St. Mary's County, which was denied. Following the hearing, Judge Mattingly enjoined Mr. Franzen "to take such actions as shall be necessary to prevent any future flooding of the (respondents') property...." When the petitioner appealed to the Court of Special Appeals, the Dubinoks moved to dismiss the portion of the appeal relating to the jury determination on the ground that the order of satisfaction rendered this part of the case moot. The intermediate appellate court granted the motion, holding that since the voluntary payment of damages in compliance with a judgment is an act inconsistent with the maintenance of an appeal, Mr. Franzen had waived his right to appellate review of the judgment entered on the jury's verdict. After also determining that the order of satisfaction did not act to bar the subsequent equitable relief sought, that court concluded that the injunction order was nevertheless defective in that it contravened the specificity requirements of Rule BB78 a, and it remanded the matter to the trial court for the fashioning of a proper decretal order. ¹ In addition, the Court of Special Appeals affirmed the trial court's denial of petitioner's motion to implead the county commissioners. Franzen v. Dubinok, 45 Md.App. 728, 415 A.2d 621 (1980). We granted certiorari.

The law of this State is clear that the "right to an appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal." ² Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966). In conformity to this principle, we have heretofore held that the filing of a remittitur by the beneficiary, combined with the acceptance of the tendered payment of the award and causing the court record to be marked as satisfied, brings the litigation to a complete conclusion, thus barring an appeal by the judgment creditor, Kneas v. Hecht Company, 257 Md. 121, 124-26, 262 A.2d 518, 520-21 (1970); that no appeal lies from a consent decree, Mercantile Trust Co. v. Schloss, 165 Md. 18, 24, 166 A. 599, 601-02 (1933); and that after an invocation of the benefits accruing under an order of court, a party will not be heard to assail its validity. Stewart v. McCaddin, 107 Md. 314, 318-19, 68 A. 571, 573 (1908). This general rule of preclusion enunciated in the Brosius case has been variously characterized as an "estoppel," Dubin v. Mobile Land Corp., 250 Md. 349, 353, 243 A.2d 585, 587 (1968), a "waiver" of the right to appeal, id. at 353, 243 A.2d at 587; Bowers v. Soper, 148 Md. 695, 697, 130 A. 330, 331 (1925), an "acceptance of benefits" of the court determination, Dubin v. Mobile Land Corp., supra, creating "mootness," Durst v. Durst, 225 Md. 175, 182, 169 A.2d 755, 758 (1961), and an "acquiescence" in the judgment, Rocks v. Brosius, supra; Stewart v. McCaddin, supra, 107 Md. at 318, 68 A. at 573. We think the label applied to the rule is less important than its essence that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.

The petitioner maintains before us, however, that the payment by a judgment debtor of the money judicially determined to be owing is not governed by the just-mentioned exception to the general rule permitting an appeal. In support of this, he urges, as he did before the intermediate appellate court, that there is a difference of substantial degree between accepting the fruits of, or acquiescing in, a judgment and complying with, or suffering detriment flowing from, a judicial determination. While basically accepting this conclusion, we point out that the focus of the inquiry must be on whether the compliance with the judgment is the result of legally sufficient compulsion. Thus, if such a payment is involuntary or coerced, then the fact that it was made will not bar an appeal by the payor. Although we are unable to find any Maryland authority directly discussing the precise question presented here, many of our sister jurisdictions have wrestled with this issue; these courts, utilizing somewhat varied approaches and rationales, have arrived at irreconcilable positions. See Annot., 39 A.L.R.2d 153 (1955). Nonetheless, from our perspective, unconstrained by stare decisis, we are persuaded by the reasoning of what appears to us to be a majority of courts addressing the problem, that the difference between the receipt by a judgment creditor and the payment by a judgment debtor of an amount judicially determined to be due is sufficient to justify different rules in these converse situations.

By way of explanation, we start from the proposition, entertained by practically all jurisdictions, that payment tendered after the issuance of execution on a judgment is clearly coerced. E. g., Reitano v. Yankwich, 38 Cal.2d 1, 237 P.2d 6, 7-8 (1951); Reserve Life Ins. Co., Dallas, Tex. v. Frankfather, 123 Colo. 77, 225 P.2d 1035, 1040 (1950); Armstrong v. Douglas Park Bldg. Ass'n., 176 Ill. 298, 52 N.E. 886, 887 (1898). Moreover, the fact that the appellant failed to obtain a stay or other supersedeas pending appeal is normally held to have no effect on the voluntariness determination, since the obtention of such relief is not generally a prerequisite to an appeal. E. g., Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885); Wales v. Greene, 125 Cal.App.2d 387, 270 P.2d 534, 538 (1954); Power County v. Evans Bros. Land and Live Stock Co., 43 Idaho 158, 252 P. 182, 183 (1926); Fidelity and Columbia Trust Co. v. Harkelroad, 224 Ky. 5, 5 S.W.2d 477, 479 (1928). See Durst v. Durst, supra, 225 Md. at 182, 169 A.2d at 758. A closer question, however, is presented when execution on the judgment has not yet issued, for here, a judgment debtor's proprietary peril is not so manifest. In our view, nevertheless, the right of appeal following payment of the award should not turn simply on the issuance of execution. In this context, the words of a noted authority are instructive:

One against whom a judgment is entered, if he fails to satisfy it, must expect to see his property seized and sold at a sacrifice, and it is difficult to conceive how his payment of the judgment can give rise to any estoppel against his seeking to avoid it for error. Nevertheless there are cases deciding that one paying a judgment against him precludes all appeal therefrom. The better view, we think, is, that though execution has not issued, the payment of a judgment must be regarded as compulsory, and ... (not) depriving the payor of his right to appeal, unless payment be by way of compromise and settlement or under an agreement not to appeal or under circumstances leaving only a moot question for determination. (2 A. Freeman, A Treatise of the Law of Judgments § 1165, p. 2410 (5th ed. by E. Tuttle, 1925).)

Not only does the final judgment of a court, by its nature, serve to coerce the party against whom it operates, but in Maryland, it also automatically creates a lien on any real and certain leasehold property once the judgment is properly entered or recorded. See Md.Rule 620; Van Royen v. Lacey, 262 Md. 94, 99-100, 277 A.2d 13, 15-16 (1971). This substantial encumbrance on a judgment debtor's property exists until the judgment is paid, released or otherwise satisfied, or until twelve years expires unless extended by writ of scire facias. And neither the issuance of a stay or injunction nor the filing of an appeal bond will cause it to be extinguished; rather, utilizing such procedures merely suspends the right to enforce it. See 3 Poe's Pleading and Practice § 376, p. 751 (6th ed. by H. Sachs, 1975) (citations therein). The essence of a final judgment as an order of the court, the automatic creation of a lien on property which cannot be removed while maintaining an appeal but by satisfaction of the award, and the fact that it is subject to execution, all combine to support the conclusion that the payment of a judgment unless tendered as a...