Grand River Dam Authority v. Eaton

• Decision Date: 26 December 1990
• Docket Number: No. 75022,75022
• Citation: 803 P.2d 705
• Parties: GRAND RIVER DAM AUTHORITY, a public corporation, Appellee, v. Don E. EATON and Nadja L. Eaton, et al., Appellants.
• Court: Oklahoma Supreme Court

Page 705

803 P.2d 705

1990 OK 133

GRAND RIVER DAM AUTHORITY, a public corporation, Appellee, v. Don E. EATON and Nadja L. Eaton, et al., Appellants.

No. 75022.

Supreme Court of Oklahoma.

Dec. 26, 1990.

Appeal From the District Court of Rogers County; William J. Whistler, Trial Judge.

After a motion to dismiss appeal as moot was filed by Appellee, Grand River Dam Authority, this Court appointed the trial court as its Special Master to make findings of fact and conclusions of law on the issue of whether Appellants, Don E. and Nadja L. Eaton, voluntarily paid the monetary judgment which is the subject of this appeal under circumstances which would render the appeal moot and subject to dismissal. The trial court found the judgment had been voluntarily paid. The evidence at the hearing before the Special Master essentially showed Appellants, with trial court approval, allowed the Court Clerk of Rogers County to release certain money deposited by them with the court clerk to pay the judgment to Appellee. The disbursement of funds was accomplished at a time the appeal was pending in this Court and a writ of execution on certain of their property was outstanding. No supersedeas bond was obtained by Appellants nor did the evidence show they were unable to post such a bond. The judgment was paid to avoid the possibility that a farm owned by them would be executed upon and eventually sold to satisfy the judgment. Held: In the normal case payment of a monetary final judgment will only be deemed to moot an appeal and subject it to dismissal when made under circumstances showing an intent 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 the judgment. No such showing was made here. Accordingly, Appellee's motion to dismiss the appeal is denied.

APPELLEE'S MOTION TO DISMISS APPEAL DENIED.

Dugie Hagberg Standeford, Asst. Gen. Counsel, Grand River Dam Authority, Vinita, for appellee.

Joe L. White, Collinsville, for appellants.

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 supersedeas 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 Appellee 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 uncontroverted 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 debtor 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...