V-1 Oil Co. v. People

• Decision Date: 24 October 1990
• Docket Number: No. 89-205,V-1,89-205
• Citation: 799 P.2d 1199
• Parties: OIL COMPANY, a Wyoming corporation, Appellant (Defendant), v. The PEOPLE of the State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1199

799 P.2d 1199

V-1 OIL COMPANY, a Wyoming corporation, Appellant (Defendant), v. The PEOPLE of the State of Wyoming, Appellee (Plaintiff).

No. 89-205.

Supreme Court of Wyoming.

Oct. 24, 1990.

F.M. Andrews, Jr. and Robert O. Anderson of Andrews and Anderson, P.C., Riverton, for appellant.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, and Steve Jones, Sr. Asst. Attys. Gen., for appellee.

Before CARDINE, C.J., ^* and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Chief Justice.

By appeal, this case invokes consideration of the effect of a statutory provision, penal or punitive in nature, which was expressly repealed before appeal decision, but following entry of a district court monetary judgment. Appellant V-1 Oil Company (V-1 Oil), based on the enacted statute, moved to vacate the judgment and release a posted supersedeas bond of $50,000. We grant V-1 Oil's motion, reverse and remand for entry of dismissal of the environmental agency judgment obtained against V-1 Oil, the operator of a self-service gasoline station.

I. PROCEDURAL HISTORY

V-1 Oil, for an extended time, had operated a retail station in Lander, Wyoming. Question arose whether underground tanks or pipe connection leakage had occurred, polluting the subsurface and invading underground aquifers. An extended, active and hostile course of administrative agency proceedings ensued. ¹

This proceeding, as a district court damage action, was separately and consecutively initiated in the First Judicial District under the penal provision of the Wyoming Environmental Quality Act, W.S. 35-11-301(a)(i) and (ii) and 35-11-901(a) and (q). ² As a result of this district court proceeding, which in effect superceded the pending administrative proceeding, a judgment was entered June 29, 1989 against V-1 Oil providing in part:

1. Defendant, V-1 Oil Company, shall pay a penalty in this matter of fifty thousand dollars ($50,000.00) for violations of the Wyoming Environmental Quality Act, specifically W.S. 35-11-301(a)(i) and (ii). Such violations include but are not limited to V-1 Oil ignoring the presence of contamination in the groundwater. The penalty must be paid by the Defendant to the State of Wyoming within ninety (90) days of the date of this Final Order.

* * * * * *

18. A suspended penalty against the Defendant, V-1 Oil Company, in the amount of one million ($1,000,000.00) dollars, is hereby imposed upon the Defendant. Should the Defendant fail to clean-up the plume, as required by the terms of this Final Order the suspension of this penalty shall be removed, and the Defendant shall be required to pay to the State of Wyoming, within one hundred twenty (120) days, the amount of one million ($1,000,000.00) dollars.

Responding to entry of the judgment, V-1 Oil posted a $50,000 cash supersedeas bond and appealed to this court citing issues including:

I. The district court was without subject matter jurisdiction over this action, exclusive jurisdiction to find a violation, impose a penalty and issue a mandatory injunction and cleanup order being reserved to the administrative body.

II. There was an insufficiency of evidence upon which to find, as a matter of law, that V-1 Oil Company caused, threatened or allowed pollution to enter groundwaters of the state.

III. The statute was applied retroactively, contrary to law.

IV. The court erred in not granting a new trial or in the alternative hearing newly discovered evidence.

V. The court abused its discretion in imposing a $50,000.00 penalty and a $1,000,000.00 conditional penalty.

Underground storage tank problems in Wyoming initiated extensive legislative attention in numerous meetings. After an interim session study, Wyo.Sess.Laws ch. 98 (1990), effective March 21, 1990, was enacted to comprehensively address the problems in an act entitled "Water Pollution from Underground Storage Tanks Corrective Action Act of 1990," W.S. 35-11-1414(a). ³

II. FACTS AND CURRENT LEGISLATION

Passage of the Water Pollution from Underground Storage Tanks Corrective Action Act of 1990 presented a new issue for this appeal resulting from W.S. 35-11-1418(a), (b) and (c) of that comprehensive enactment which provides:

(a) The state attorney general shall move to dismiss any pending or ongoing suits or administrative actions which are based on the requirement the owner and operator take corrective action or which are for cost recovery of state corrective actions. The defendants in cases which are dismissed may become eligible for use of corrective action account monies in the same manner as any other owner or operator. Failure to take the necessary actions to become eligible shall result in the owner or operator who was a defendant in a dismissed case being considered ineligible for use of the corrective action account monies in the same manner as any other owner or operator.

(b) Any obligations owed the state under court orders or negotiated settlements resulting from suits requiring corrective action shall be released by the state if the owner or operator of the site takes action necessary to become eligible for use of corrective action account monies.

(c) The state shall not reimburse any person for payments made prior to the effective date of this article to the state or any other person pursuant to a court order or negotiated settlement arising from a release from an underground storage tank.

Despite the passage of the statute, the State declined to dismiss this case or release the judgment and V-1 Oil moved this court for an "Order of Dismissal of the Judgment and Order before the Court on appeal, or in the alternative, for an Order remanding this matter to the District Court, First Judicial District, with directions to vacate the judgment and order entered herein and to dismiss plaintiff's complaint with prejudice and to release defendant/appellant's bond of $50,000.00." Briefs on the motion were filed by both litigants and this court deferred consideration until after scheduled oral argument. The two new issues developed by the motion by passage of the 1990 legislation were whether (1) posting a supersedeas bond constituted a "payment made prior to the effective date of the [statute]" and (2) institution of appeal continues a "pending or ongoing suit or administrative action."

In assessment of the legislative intent, we determine both issues in favor of V-1 Oil. ⁴

III. SUPERSEDEAS BOND

The argument of the State that posting a supersedeas bond constituted a payment made to trigger W.S. 35-11-1418(c) lacks logical or precedential support. ⁵ The essence of posting a supersedeas bond by an appellant following judgment entry is to avoid a mootness challenge that might otherwise arise if the judgment is paid before appeal is taken, Greenough v. Prairie Dog Ranch, Inc., 531 P.2d 499, 502 (Wyo.1975); see also Yellowstone Sheep Co. v. Ellis, 55 Wyo. 63, 96 P.2d 895 (1939), or alternatively that the judgment creditor in absence of security would proceed to execution, Farmers' State Bank of Riverton v. Haun, 29 Wyo. 322, 213 P. 361 (1923). The supersedeas bond constitutes security provided by the judgment debtor to avoid execution on the judgment and does not constitute accomplished payment until an unqualified right to the proceeds accrues after the judgment is affirmed on appeal. Wyoming Bancorporation v. Bonham, 563 P.2d 1382, reh'g denied 566 P.2d 219 (Wyo.1977).

IV. PENDING OR ONGOING SUIT OR ADMINISTRATIVE ACTION

Definition of a pending or ongoing suit reaches into a broad array of case law considering retroactivity questions. We follow the general and well-enunciated determination that pending or ongoing status for litigation defines the time through determined appeal. MacKenzie v. a Engelhard & Sons Co., 266 U.S. 131, 142, 45 S.Ct. 68, 68, 69 L.Ed. 205 (1924); Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865 (1964); Haynes v. City of Seattle, 87 Wash. 375, 151 P. 789 (1915); State v. Tugwell, 19 Wash. 238, 257, 52 P. 1056 (1898). ⁶

The issue presented is the pending status of the litigation and not the final order for appealability. See W.R.A.P. 1.05. Consequently, we do not find that the case cited by the State, P B Realty Co. v. Wallace, 93 N.E.2d 603 (Ohio App.1950), is authoritative or dispositive. The peculiar nature of P B Realty Co., as an intermediate appellate decision involving rental contract with forceful eviction and detainer, does not detract from the predominant rule well stated by MacKenzie, 266 U.S. 131, 45 S.Ct. 68. "An appeal is a proceeding in the original cause and the suit is pending until the appeal is disposed of." Id. at 142-43, 45 S.Ct. at 68-69. See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, reh'g denied 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974); Snyder v. Buck, 340 U.S. 15, 71 S.Ct. 93, 95 L.Ed. 15 (1950); Hardy v. Western Landscape Const., 141 Cal.App.3d 1015, 190 Cal.Rptr. 766 (1983); Wilson v. Clark, 414 So.2d 526 (Fla.App.1982); Pieper, 126 N.W.2d 865; and Reickhoff v. Consolidated Gas Co., 123 Mont. 555, 217 P.2d 1076, 1080 (1950). ⁷ There is no finality to the proceeding until the appeal is concluded. People ex rel. Gow v. Mitchell Bros' Santa Ana Theater, 101 Cal.App.3d 296, 161 Cal.Rptr. 562 (1980); Golden Rule Ins. Co. v. Robeza, 194 Ill.App.3d 468, 141 Ill.Dec. 506, 551 N.E.2d 693 (1990).

The intent of the legislature was both clear and explicit when W.S. 35-11-1418(a) and (b) was enacted. The establishment and removal of penal and punitive constraints for societal misconduct are vested in that branch of government. Baum v. State, 745 P.2d 877 (Wyo.1987); Wyo. Const. art. 2, Distribution of Powers.

V. DISPOSITION

We reverse and remand to the district court for entry of an order releasing the judgment in compliance with W.S. 35-11-1418(a) and (b).

* Chief Justice at time of oral argument.

1 See V-1 Oil Co. v. Dept. of Environmental Quality, Environmental Quality Council, No. 90-12 (Dismissed 3/2/90),...