Twogood v. Wentz

• Decision Date: 16 October 2001
• Docket Number: No. 20010106.,20010106.
• Citation: 634 N.W.2d 514,2001 ND 167
• Parties: Bonnie TWOGOOD, Plaintiff and Appellant v. Pat WENTZ, Defendant, Douglas N. Ostrom, Mar Jean Selby, and Betty Jaegar, Defendants and Appellees.
• Court: North Dakota Supreme Court

634 N.W.2d 514

2001 ND 167

Bonnie TWOGOOD, Plaintiff and Appellant v. Pat WENTZ, Defendant, Douglas N. Ostrom, Mar Jean Selby, and Betty Jaegar, Defendants and Appellees.

No. 20010106.

Supreme Court of North Dakota.

October 16, 2001.

David D. Schweigert, Bucklin, Klemin & McBride, Bismarck, for plaintiff and appellant.

Shawnda R. Reid (argued) and Jerry W. Evenson (on brief), Zuger Kirmis & Smith, Bismarck, for defendants and appellees. KAPSNER, Justice.

[¶ 1] Bonnie Twogood appeals a summary judgment dismissing her negligence claim against defendants Douglas N. Ostrom, Mar Jean Selby, and Betty Jaegar (collectively, the "landlords"). In addition to granting summary judgment, the trial court assessed costs in the amount of $1300.00 against Twogood. Twogood paid this cost judgment. Because the cost judgment did not go to the merits of the case and was paid under duress, we find the satisfaction of the cost judgment did not waive Twogood's right to appeal. Finding no duty on the part of the landlords, we affirm the summary judgment.

I

[¶ 2] On July 1, 1998, Twogood entered residential property owned by the landlords in Turtle Lake to perform her duties as a utilities meter reader. The property was rented to a fourth defendant not involved in this appeal, Pat Wentz. While on the property, Twogood was bitten on her lower left leg by a dog owned by Wentz. Twogood brought suit against Wentz and the landlords, alleging negligence in breaching a duty to exercise reasonable care.

[¶ 3] The landlords moved for summary judgment, arguing they did not owe a duty to Twogood to protect her from injuries caused by Wentz's dog. They filed affidavits with their motion stating they did not know Wentz kept a dog on the property, and Wentz himself filed an affidavit asserting he had not seen, or had any knowledge of, any vicious propensities in the dog. Twogood did not dispute these statements in the affidavits. The trial court granted summary judgment to the landlords, reasoning they were neither aware Wentz kept a dog on the premises nor did they have reason to know of any vicious propensities of the dog. In addition to granting summary judgment, the trial court also assessed costs in the amount of $1300.00 against Twogood.

[¶ 4] In March of 2001 the cost judgment was transferred to Ward County, the county of Twogood's residence, and an execution was issued to the Ward County Sheriff's Department. On April 4, 2001, Twogood dismissed her case against Wentz following settlement of her claim against him. On April 23, 2001, Twogood satisfied the cost judgment levied against her. On this same day, she appealed the trial court's summary judgment order.

II

[¶ 5] A party who voluntarily pays a judgment waives the right to appeal from the judgment. Lyon v. Ford Motor Co., 2000 ND 12, ¶ 13, 604 N.W.2d 453. Twogood argues the satisfaction of the $1300.00 cost judgment was paid under duress after the initiation of collection procedures. The landlords argue Twogood was given ample time to take action other than paying the judgment and that the judgment was voluntarily satisfied. While voluntary payment of a judgment waives the right to appeal, "payment of a judgment under coercion or duress is not a waiver of the right to appeal." Id. at ¶ 14. The question of whether a judgment has been voluntarily paid and satisfied "depends on the facts and circumstances of the particular case," and "the burden is on the party moving to dismiss the appeal to show the judgment was voluntarily paid and satisfied." Id. Where the only showing is that the judgment has been paid, "a presumption arises that the payment was voluntarily." Id.

[¶ 6] We have stated "payment of a judgment under duress imposed by execution is not voluntary." Dakota Northwestern Bank National Ass'n v. Schollmeyer, 311 N.W.2d 164, 166 (N.D.1981) (discussing Grady v. Hansel, 57 N.D. 722, 223 N.W. 937 (1929)). In Grady, the judgment was paid "to the sheriff armed with an execution and who made return on the execution." Grady, at 938. Under these circumstances we held payment cannot be said to be voluntary so as to waive the right of appeal. Id. Similarly, in Schollmeyer we held payment of a judgment is not voluntary when proceeds of a public auction, conducted in accordance with an agreement signed after a special execution had been issued, are used to satisfy the judgment. Schollmeyer, at 166.

[¶ 7] Although not argued by the parties, a separate basis for holding Twogood has not waived her right to appeal is our prior caselaw differentiating between merits and costs of a case. Twogood paid a cost judgment after an execution was issued to the Ward County Sheriff's Department. "[T]he payment of costs which are only incidental to the judgment and do not in any way go to the merits of the case will not defeat the right to appeal." St. Vincent's Nursing Home v. Department of Labor, 168 N.W.2d 265, 266 (N.D.1969). A "`judgment consists of two parts,—one on the merits, and the other for the costs. The payment and satisfaction of the latter is no bar to error proceeding to obtain the reversal' of the former." Carroll v. Ryan, 79 N.D. 366, 56 N.W.2d 682, 684 (1953) (quoting Woodward v. State ex rel. Thomssen, 58 Neb. 598, 79 N.W. 164, 164 (1899)).

[¶ 8] In Carroll, a dismissal was entered in favor of the defendant and costs were assessed against the plaintiff in the amount of $147.60. Carroll, 56 N.W.2d at 682. The plaintiff moved for a new trial, which the defendant sought to dismiss on the basis of the plaintiff having already paid the costs. Id. at 684. We denied the motion to dismiss, reasoning the principal judgment was for the dismissal of the action, not the assessment of costs, and therefore waiver of the right to appeal the principal judgment had not occurred. Id. Carroll is similar to the current situation. The $1300.00 paid by Twogood was only an order for costs. The costs assessed in the current case did not go to the merits of the case. See id. Therefore, payment and satisfaction of a cost judgment does not bar a proceeding to reverse a summary judgment on the merits. See St. Vincent's Nursing Home, 168 N.W.2d at 266.

III

[¶ 9] Twogood argues the trial court erred in granting summary judgment for the landlords because they owe her a duty of care to act as a reasonable person in the management of leased property. The landlords argue summary judgment was proper because they do not owe a duty to Twogood since they neither controlled the property nor had knowledge of the presence or vicious propensities of the dog.

[¶ 10] We review this portion of the appeal under our standards for summary judgment, which promptly resolves a controversy on the merits without a trial if the evidence demonstrates the nonexistence of a genuine issue of material fact, or inferences to be drawn from undisputed material facts, and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. "Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts." Fetch, at ¶ 8. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978).

[¶ 11] Whether a trial judge properly granted summary judgment is a question of law which we review de novo on the entire record. Fetch, 2001 ND 48, ¶ 8,623 N.W.2d 357. The party seeking summary judgment bears the initial burden of showing no genuine dispute regarding a material fact exists. Id. at ¶ 9. We review the evidence in the light most favorable to the party opposing the summary judgment motion. Id. at ¶ 8. The opposing party, however, may not simply rely on unsupported and conclusory allegations or denials in the pleadings. Instead, the party must set forth specific facts illustrating there is a genuine issue for trial. N.D.R.Civ.P. 56(e). We have held summary judgment should rarely be granted in negligence cases. Helbling, 267 N.W.2d at 561. By their very nature, negligence claims are usually poor subjects for summary judgment. Latendresse v. Latendresse, 294 N.W.2d 742, 748 (N.D.1980).

[¶ 12] To establish her cause of action for negligence, Twogood must show the landlords had a duty to protect her from injury. See Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. "We have stated negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty." Id. If a duty on the part of the landlords does not exist, neither does negligence. See id. Generally, whether a defendant owes a plaintiff a duty of care is a preliminary question of law for the court to determine, but if the existence of a duty depends on resolving factual issues, the trier of fact must ascertain the facts. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813. Twogood urges this Court to hold the landlords to the standard of a reasonable person who is a landlord.

[¶ 13] Under our premises liability law, a property owner must have control over the property where the injury occurred in order to find the owner owed a duty to an injured party. Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815. Before a duty of care is owed, "it must be demonstrated the defendant had control of the premises and, therefore, an opportunity to observe any duty." Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 9, 567 N.W.2d 345. "Thus, control is an essential prerequisite for imposition of premises liability." Doan, at ¶ 13. In the current case, Twogood has not set forth any facts illustrating the landlords had control of the property. She argued the landlords exerted a degree of control over the property because the lease agreement required Wentz to pay for all...