MR. G'S TURTLE MOUNTAIN LODGE v. Roland Township, 20010202.

• Decision Date: 23 August 2002
• Docket Number: No. 20010202.,20010202.
• Citation: 2002 ND 140,651 N.W.2d 625
• Parties: MR. G'S TURTLE MOUNTAIN LODGE, INC., Plaintiff and Appellant, v. ROLAND TOWNSHIP, Michael Sturdevant, Defendants and Appellees. Bill Light, Ken Nelson, Clayton Lider and Jeff Monson, Defendants.
• Court: North Dakota Supreme Court

651 N.W.2d 625

2002 ND 140

MR. G'S TURTLE MOUNTAIN LODGE, INC., Plaintiff and Appellant, v. ROLAND TOWNSHIP, Michael Sturdevant, Defendants and Appellees.

Bill Light, Ken Nelson, Clayton Lider and Jeff Monson, Defendants.

No. 20010202.

Supreme Court of North Dakota.

August 23, 2002.

James Edward Nostdahl (argued) and Brent Michael Olson (on brief), Pringle & Herigstad, P.C., Minot, for plaintiff and appellant.

Collin Paul Dobrovolny (argued) and Bryan Lee Van Grinsven (appeared), McGee, Hankla, Backes & Dobrovolny, Minot, for defendant and appellee Roland Township.

James S. Hill (argued) and Rebecca S. Thiem (on brief), Zuger Kirmis & Smith, Bismarck, for defendant and appellee Michael Sturdevant.

KAPSNER, Justice.

[¶ 1] Mr. G's Turtle Mountain Lodge, Inc. ("Mr. G's") appealed from summary judgments dismissing its claims against Roland Township, Michael Sturdevant, Clayton Lider, Jeff Monson, Bill Light, and Ken Nelson. We dismiss Mr. G's attempted appeal from the judgment dismissing its claims against Michael Sturdevant, concluding the appeal is jurisdictionally barred and Mr. G's waived its right to appeal when it voluntarily paid the judgment. We affirm the judgment dismissing Mr. G's claims against Roland Township, concluding that Mr. G's failed to raise a genuine issue of material fact on an essential element of its wrongful interference with business claim and that an allegedly libelous communication was not fairly susceptible of a defamatory meaning.¹

I

[¶ 2] In March 1999, Mr. G's purchased the Turtle Mountain Lodge on Lake Metigoshe. When the lodge proved unprofitable, Mr. G's closed it in September 1999 and had it razed. In November 1999, Mr. G's requested that the Roland Township Board of Supervisors ("the Board") rezone the property from commercial to residential. Mr. G's intended to subdivide the property and sell lots on the lake. The Board met on December 10, 1999, to consider Mr. G's request. Members of the Board expressed concerns to Mr. G's representatives about lot size, setback requirements, lot configurations, and other zoning requirements, and indicated there would be problems with issuing building permits for the lots. The Board approved the zoning change from commercial to residential, but did not approve a plat map.

[¶ 3] Mr. G's subsequently had a plat map prepared and recorded it with the Bottineau County Register of Deeds on January 26, 2000. A dispute arose regarding the legality of recording a plat map which had not been approved by the Board. Two Board members and Michael Sturdevant, the Board's attorney, met with representatives of Mr. G's and John Gregg, who was Mr. G's attorney and was also the States Attorney for Bottineau County. Gregg ultimately advised the Bottineau County Register of Deeds that it was legal to record the plat map without the approval of the Board.²

[¶ 4] Mr. G's scheduled a public auction for February 12, 2000, to sell the lots as described in the plat map. When the Board learned of the scheduled public auction, it authorized Sturdevant to send a letter to the editors of two area newspapers advising the public about possible problems with zoning and issuance of building permits for the lots. The two essentially identical letters, published on February 6 and February 8, 2000, stated:

As attorney for Roland Township (Bottineau County) Board of Supervisors, I am writing with regard to the auction sale of lots on Hahn's Bay Shores at Lake Metigoshe which was recently advertised in the Daily News. We believe that the public should be given notice that this property is subject to the Roland Township zoning ordinance and that plat of Hahn's Bay Shores was recorded without the consent of the township supervisors.

Copies of the Roland Township zoning ordinance have been provided to the Minot Public Library and the Bottineau County Library. Persons considering the purchase of any of these lots should carefully review the provisions of the zoning ordinance relating to residential districts. Building permits are required and cannot be issued for nonconforming construction in new developments.

[¶ 5] The auction took place as scheduled. Bids on two lots were received, but Mr. G's rejected the bids because they were below the minimum acceptable bids Mr. G's had predetermined for those lots.

[¶ 6] On March 3, 2000, Mr. G's brought this action against Roland Township; Sturdevant; Clayton Lider and Jeff Monson, members of the Board; and Bill Light and Ken Nelson, neighboring landowners. The complaint alleged tortious interference with business relationships, deceit, slander of title, civil libel, slander, and inverse condemnation. On motions for summary judgment, the district court dismissed all claims against Sturdevant, Light, and Nelson, found the claims against those defendants were frivolous, and awarded those defendants their actual costs and attorney's fees for defending the actions. The court also granted summary judgment dismissing all claims against Roland Township, Lider, and Monson, concluding there were no genuine issues of material fact and the defendants were entitled to judgment as a matter of law. Mr. G's appealed.

II

[¶ 7] Sturdevant argues Mr. G's attempted appeal from the judgment dismissing the claims against him should be dismissed because the formal satisfaction of the judgment jurisdictionally bars the appeal and Mr. G's voluntary payment of the judgment constitutes a waiver of the right to appeal.

A

[¶ 8] The district court granted summary judgment dismissing Mr. G's claims against Sturdevant, finding the claims were frivolous. The court awarded Sturdevant actual costs and attorney's fees in the amount of $36,632.00 for defending the frivolous action. Mr. G's paid the judgment, procured a satisfaction of judgment from Sturdevant's attorney, and filed the satisfaction of judgment with the clerk of court. The satisfaction of judgment was properly acknowledged as required by N.D.C.C. § 28-20-24. See Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, 647 N.W.2d 133,

¶¶ 8-9.

[¶ 9] We have recently held that an attempted appeal from a judgment that has been properly satisfied of record fails for lack of jurisdiction:

A judgment that has been paid and satisfied of record ceases to have any existence. Lyon v. Ford Motor Co., 2000 ND 12, ¶ 10, 604 N.W.2d 453. A satisfaction of judgment on the record extinguishes the claim, and the controversy is deemed ended, leaving an appellate court with nothing to review. DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432; Lyon, at ¶ 10. An appellate court is without jurisdiction if there is no actual and justiciable controversy. Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶ 22, 578 N.W.2d 101. Thus, an attempted appeal from a judgment that has been satisfied of record fails for lack of jurisdiction.

Stegman, 647 N.W.2d 133, 2002 ND 113, ¶ 7.

[¶ 10] Further support for this conclusion is found in N.D.C.C. § 28-05-10, which provides:

A civil action in a district court is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.

Thus, when a judgment is satisfied before the time for appeal has expired, the action is no longer pending. Once an action is no longer pending under N.D.C.C. § 28-05-10, a court is without jurisdiction unless a motion is made to reinvoke jurisdiction. Fichter v. Kadrmas, 507 N.W.2d 72, 75 (N.D.1993).

[¶ 11] We further concluded in Lyon, 2000 ND 12, ¶ 13, 604 N.W.2d 453, that "a party who voluntarily pays a judgment against him waives the right to appeal from the judgment." Consequently, Mr. G's waived its right to appeal when it voluntarily paid the judgment to Sturdevant.

[¶ 12] Mr. G's argues that it did not pay the judgment voluntarily, but rather paid it under duress. Mr. G's contends that it only paid the various judgments to remove the judgment liens against the property in order to clear the way for a pending sale of some of the lots.

[¶ 13] While voluntary payment of a judgment waives the right to appeal, payment of a judgment under coercion or duress does not constitute a waiver. Twogood v. Wentz, 2001 ND 167, ¶ 5, 634 N.W.2d 514; Lyon, 2000 ND 12, ¶ 14, 604 N.W.2d 453. The question whether a judgment has been voluntarily paid depends upon the facts and circumstances of each particular case, and the party seeking dismissal of the appeal bears the burden of showing the judgment was paid voluntarily. Twogood, at ¶ 5; Lyon, at ¶ 14. A showing that the judgment has been paid, however, creates a presumption that the payment was voluntary. Twogood, at ¶ 5; Lyon, at ¶ 14.

[¶ 14] Mr. G's argues it paid the judgment under coercion or duress because it needed to remove the judgment lien to facilitate a pending sale of the property. However, under N.D.C.C. § 28-20-29, a judgment debtor may have the judgment lien against the property released by either depositing sufficient funds with the clerk of court or posting a supersedeas bond. Lyon, 2000 ND 12, ¶ 12,604 N.W.2d 453. Mr. G's did not avail itself of these statutory options to release the lien, but paid the judgment to Sturdevant and procured and filed a satisfaction of judgment on the record. Under these circumstances, Mr. G's payment of the judgment was voluntary and constituted a waiver of the right to appeal.

[¶ 15] Mr. G's also argues that dismissal is inappropriate because it paid only a cost judgment, not a judgment based upon the merits of its claims. Mr. G's argues our holding in Twogood, which differentiated between payment of a cost judgment and one which goes to the merits, supports the assertion that it has not waived its right to appeal.

[¶ 16] In Twogood, we concluded that payment of a cost judgment, which did not "in any way go to the merits of the case," did not defeat the right to appeal in that case. Twogood, 2001 ND 167, ¶¶ 7-8, 634 N.W.2d 514. We...