Troyer v. Gilliland

• Decision Date: 26 October 1990
• Docket Number: No. 64620,64620
• Citation: 247 Kan. 479,799 P.2d 501
• Parties: Stanford W. TROYER, Appellant, v. Ken GILLILAND and Vicki Gilliland, Appellees.
• Court: Kansas Supreme Court

Page 501

799 P.2d 501

247 Kan. 479

Stanford W. TROYER, Appellant, v. Ken GILLILAND and Vicki Gilliland, Appellees.

No. 64620.

Supreme Court of Kansas.

Oct. 26, 1990.

Syllabus by the Court

Subject to certain exceptions, as a general rule, a litigant who has accepted the benefits of the judgment of the trial court will be deemed to have acquiesced in such judgment and may not thereafter adopt an inconsistent position and appeal from such judgment.

Gary House, of Sedan, argued the cause, and was on the brief, for appellant.

John M. Wall, of Sedan, argued the cause, and was on the brief, for appellees.

SIX, Justice:

This case addresses acquiescence in a trial court's judgment as a bar to contesting the judgment on appeal. The dual nature of the question before us relates to whether the appellant, Stanford Troyer, (the plaintiff below) has acquiesced in the money judgment awarded by the trial court and, if so, whether he may appeal that judgment.

Troyer filed this action to terminate a joint venture agreement, divide joint venture assets, and recover damages resulting from alleged wrongful acts of defendants Ken and Vicki Gilliland. The Gillilands responded with an answer and cross-petition seeking damages and an equitable division of joint venture property. Troyer appeals the trial court's division of joint venture assets and the trial court's denial of damages resulting from the sale of joint venture assets by the Gillilands.

We hold that Troyer has acquiesced in the judgment awarded to him by the trial court. His appeal is dismissed.

Facts

Troyer owns 1,480 acres of land located in Chautauqua County. The improvements on the land include a four-bedroom house, a dairy barn, and several outbuildings.

In August 1985, Troyer and the Gillilands entered into an agreement, concerning the Chautauqua County land, which was reduced to writing by Troyer and signed by both parties. The agreement launched a joint venture known as Bee Creek Farms (BCF). The BCF joint venture was to grow grain crops, operate a dairy, and raise livestock.

Although not stated in writing, the parties agreed that the Gillilands could live on the farm rent free.

In August 1987, the parties signed another written agreement drafted by Troyer containing certain modifications of the 1985 agreement. The 1987 agreement provided that the Gillilands would own one-half of all livestock if the agreement was still in effect on August 28, 1989, and if the herd had increased to 100 head.

Troyer later became interested in selling the farm. In November 1988, he demanded that the Gillilands surrender most of the assets and by January 1, 1989, move off the farm. The Gillilands refused. Further negotiations between the parties and mediation by the Chautauqua County Extension Office failed to resolve the dispute. This litigation followed.

The trial court found that the only apparent reason Troyer terminated the 1987 agreement was to prevent the Gillilands from realizing the benefits of the agreement. This finding was considered in dividing the BCF assets. The trial court reasoned that Troyer's action of diverting the milk checks and seizing BCF funds caused damages and depreciation of the cattle. Troyer's claim for damages resulting from the sale of cattle was denied. The trial court constructed an accounting and divided the BCF assets. Troyer was awarded $12,125.40. The Gillilands received all of the farm equipment.

The Gillilands caused a writ of execution to be issued for the machinery in Troyer's possession. The writ was returned partially satisfied. Troyer initiated an order of garnishment issued on the Gillilands' bank to collect his money judgment. The order was returned showing no property held by the garnishee bank.

Troyer filed his notice of appeal on December 5, 1989.

In May of 1990, the Gillilands filed with the Court of Appeals a motion to stay further proceedings pending the final determination of the appeal. The motion was denied on present showing.

Troyer filed a praecipe for execution in the trial court seeking delivery of three pieces of farm equipment, two of which had been previously taken pursuant to the writ of execution initiated by the Gillilands. The sheriff took possession of the equipment on June 7, 1990. On June 11, 1990, the Gillilands paid $12,125.40, the amount of Troyer's judgment, into court and secured a return of the farm equipment.

On June 22, 1990, upon Troyer's motion, the trial court ordered the $12,125.40, paid by the Gillilands, distributed as follows: (1) $60 to the sheriff for expenses in execution upon the farm equipment; (2) $55 to Troyer (as plaintiff) for application on court costs; and (3) $12,010.40 to Troyer to be applied against his judgment (and interest) rendered against the Gillilands.

After the case was set for appellate argument, the Gillilands filed a motion to dismiss Troyer's appeal.

We denied the motion to dismiss with leave to renew at oral argument.

Acquiescence in the Judgment

The Gillilands argue in their motion to dismiss that Troyer has acquiesced in the judgment of the trial court by seeking and securing an order for distribution of funds. We agree.

Troyer, in his answer in opposition to the Gillilands' motion to dismiss, states:

"Appellant [Troyer] appealed the decision of the District Court of Chautauqua County, Kansas, because he contended that the judgment granted to him against Appellees [the Gillilands] was insufficient.

"[T]he trial court's judgment or decree involves distinct and severable matters, specifically that money judgment was granted to Appellant which Appellant contends to be insufficient ; that a separate judgment to Appellees was granted against Appellant for transfer of...