Lippert v. Angle
| Decision Date | 02 November 1974 |
| Docket Number | No. 47432,47432 |
| Citation | 527 P.2d 1016,215 Kan. 626 |
| Parties | E. Verne LIPPERT et al., Appellees, v. George A. ANGLE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When a money judgment is merely modified and affirmed on appeal interest on the judgment as modified should be allowed from the date the original judgment was entered in the trial court.
2. The record on appeal from an order allowing interest on a judgment previously modified on appeal is examined and it is held: (1) Prejudgment interest (6%) should be allowed to the date of the original judgment, (2) Interest (8%) on the modified judgment should be allowed thereafter, and (3) Interest (8%) on the modified judgment is not recoverable during the time the full amount of the judgment was on deposit in the court and subject to court order.
Gerald Sawatzky, Wichita, argued the cause, and John J. Stang, LaCrosse, and Foulston, Siefkin, Powers & Eberhardt, Wichita, of counsel, were with him on the brief for appellant.
Robert J. O'Connor, Hershberger, Patterson & Jones, Wichita, argued the cause, and Richard Jones, Wichita, was with him on the brief for appellees.
This appeal is from an order allowing interest on the judgment which was appealed and affirmed as modified in Lippert v. Angle, 211 Kan. 695, 508 P.2d 920.
In Lippert this court ordered that a judgment for the amount due on gas royalties be modified. The leases involved in that case required the payment of royalties based upon the market value of the gas produced. On appeal the original judgment of the district court was modified in two respects. The market value of the gas was found to be slightly less than that determined by the trial court based upon undisputed evidence in the record and the amount of prejudgment interest was limited to six percent (6%) per annum as specified in K.S.A. 16-201.
The original judgment in the district court was entered on October 20, 1971. This judgment was affirmed as modified by this court. After the mandate of this court went down, the district court entered the modified judgment on June 6, 1973. On this latter date the defendant paid into court the full amount of the royalties due as determined on appeal ($41,015.35) plus prejudgment interest at the rate of six percent (6%) per annum from the respective dates the royalties accrued to June 6, 1973 ($13,237.49).
Our separate statutes authorizing prejudgment interest and interest on a judgment provide different rates of interest. Prejudgment interest, when allowed, is limited to six percent (6%) per annum. (K.S.A. 16-201.) Interest on judgments is fixed at eight percent (8%) per annum. (K.S.A.1973 Supp. 16-204.) On remand of the case the district court allowed prejudgment interest (6%) on the royalties from accrual through October 20, 1971, which is the date the original judgment was entered. It further ordered payment of interest on the total judgment (royalties and interest) at the rate of eight percent (8%) per annum commencing October 21, 1971, and continuing until the judgment was paid into the court, i. e., June 6, 1973. The present appeal involves the amount of interest paid and payable from October 21, 1971, to June 6, 1973.
Defendant-appellant contends the judgment modified on appeal was entered on June 6, 1973, prejudgment interest was paid to that date and no additional interest is due on that judgment. The plaintiffs-appellees argue that when a judgment is affirmed as modified on appeal the date of the original judgment is the date from which interest on the modified judgment runs. Therefore prejudgment interest (6%) was due up to October 20, 1971, when the judgment was originally entered, and thereafter interest (8%) on the judgment was due from October 21, 1971, to April 6, 1973.
Our problem is to determine the date a judgment modified on appeal should be considered as entered for the purpose of determining when prejudgment interest ends and interest on the judgment begins.
Our statute relating to entry of judgments (K.S.A. 60-258) does not specifically relate to judgments modified on appeal. We find no Kansas cases bearing upon the question. The dicta in Turner v. George Rushton Baking Co., 139 Kan. 425, 32 P.2d 198, does not help for the case was decided on the theory of waiver. So, the question is one of first impression in Kansas.
Various cases on this subject have been collected in the annotation 'Judgment-Modification-Interest' appearing in 4 A.L.R.3d 1221. It appears from these cases that if the original judgment is actually reversed a later judgment entered does not relate back. However, when the amount of a money judgment has been merely reduced on appeal and the appellate court has, in effect, affirmed the judgment for a reduced amount, it is generally held that the judgment creditor is entitled to interest on the amount of the judgment as reduced from the date that interest would have run on the original judgment if it has not been reduced.
The rationale in support of such a holding is stated in De La Rama v. De La Rama, 241 U.S. 154, 36 S.Ct. 518, 60 L.Ed. 932, as follows:
'. . . (T)hat was the date at which, but for the delays of the law, the wife (judgment creditor) would have received her dues, the husband (judgment debtor) has had the use of the money meanwhile, . . .' (p. 159, 36 S.Ct. p. 519.)
See also Yarno v. Hedlund Box & Lumber Co., 135 Wash. 406, 237 P. 1002.
The appellant points to the wording of the opinion in Lippert v. Angle, supra, where this court remanded the case to the trial court with directions to enter judgment in harmony with the views expressed in the opinion. The contention is made that the judgment entered in compliance therewith on June 6, 1973, was a different and distinct judgment from that originally entered. As previously stated it is generally held that where the action of the appellate court can be regarded as a full reversal, the action of the appellate court has the effect of wiping out the original judgment and interest on the new judgment then runs only from the time when the amount of the new judgment is fixed. Pearson v. Schmitt, 260 Or. 607, 492 P.2d 269; Novack v. Novack, 210 So.2d 215 (Fla.); see also 47 C.J.S. Interest § 59, p. 68.
In our present case the original judgment was modified in two particulars only. The modification was found necessary by reason of undisputed evidence in the record on appeal. The market value of gas royalties was reduced accordingly and the statute limiting prejudgment interest was called to the attention of the trial court. The theory and basis for recovery remained the same.
It has been held that even though the language used in an opinion may indicate...
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