Wilmer v. BD. OF COUNTY COM'RS, LEAVENWORTH, Civ. A. No. 91-2265-GTV.

• Citation: 844 F. Supp. 1414
• Decision Date: 29 December 1993
• Docket Number: Civ. A. No. 91-2265-GTV.
• Court: U.S. District Court — District of Kansas
• Parties: James Harold WILMER, Jr., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, KANSAS, Defendant.

844 F. Supp. 1414

James Harold WILMER, Jr., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, KANSAS, Defendant.

Civ. A. No. 91-2265-GTV.

United States District Court, D. Kansas.

November 19, 1993.

Memorandum Denying Reconsideration December 29, 1993.

COPYRIGHT MATERIAL OMITTED

Arthur R. Stirnaman, Chapman, Waters & Baxter, John L. White, Law Offices of John L. White, Leavenworth, KS, for James Harold Wilmer, Jr.

Robert D. Beall, Davis, Beall, McGuire & Thompson, Chtd., David C. VanParys, County Counselor, Leavenworth, KS, for Board of County Com'rs of Leavenworth County.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case is before the court on the following post-trial motions:

Plaintiff's motion for payment of judgment (Doc. 122);

Defendant's motion for stay of proceedings to enforce payment (Doc. 126); and

Plaintiff's motion for order in mandamus (Doc. 130).

The motions are denied. Enforcement of the judgment may be stayed only upon the filing of a supersedeas bond or other security with the Clerk of the Court.

I. Background

This is a diversity of citizenship personal injury action brought by plaintiff James Harold Wilmer, Jr. Plaintiff alleged that on March 26, 1989, he was injured in a motorcycle accident at a curve on County Road 21 located in Leavenworth County, Kansas. He alleged that defendant's negligent maintenance and placement of a warning sign at a curve on County Road 21 was the proximate cause of both the accident and his injuries. Defendant countered that plaintiff's own negligence was the proximate cause of the accident and his injuries.

Plaintiff's action was tried to a jury for a third time from August 16 to August 20, 1993. After deliberating, the jury returned a verdict in favor of plaintiff. The jury found plaintiff to have been 35% at fault and defendant to have been 65% at fault. The jury also found plaintiff to have suffered a total of $982,242.00 in damages, yielding a judgment in the amount of $638,457.30.

Following the entry of judgment on August 20, 1993, the defendant moved for a new trial on August 30, 1993. The court denied the motion for new trial on October 8, 1993, and defendant then filed a timely notice of appeal on November 5, 1993.

In his first motion (Doc. 122), plaintiff requests an order in mandamus from the court requiring the defendant to pay the judgment, together with interest and costs. Plaintiff's second motion (Doc. 130) also asks for an order in mandamus, but one that would only require the defendant to collect by tax levy the amount needed to satisfy the judgment, interest, and costs. The collected funds would not be paid out until after the appeal is decided. In both motions, the plaintiff requested that in the alternative defendant be required to post a supersedeas bond.

Fed.R.Civ.P. 62(d) entitles the appellant to a stay of execution of a judgment upon the posting of a supersedeas bond. The defendant in its motion for stay of proceedings has asked the court to excuse it from posting such a bond. The defendant's argument is based on a Kansas statute that amended K.S.A. 19-108 effective April 15, 1993. Section (b) of the amended section reads: "(b) The county shall not be required in any proceeding in any court to give security for costs on appeal, or any stay or supersedeas bond, where the county is plaintiff or defendant." 1993 Kan.Sess. Laws 149.

II. Discussion

The defendant (the County) first argues that the state statute in conjunction with Rule 62(d) entitles the County to an exemption from the bond posting requirement. Rule 62(d) reads:

(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court.

An appellant is entitled to a stay on execution of the judgment as a matter of right if it posts bond in accordance with Rule 62(d). In re Federal Facilities Realty Trust, 227 F.2d 651, 655 (7th Cir.1955). The purpose of requiring a supersedeas bond is to "secure an appellee from loss resulting from the stay of execution." Miami Int'l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986). The local rules of this court require an appellant to post a supersedeas bond in the amount of the judgment plus 25%. D.Kan. Rule 221.

The County's argument seems to be that Rule 62(d) entitles an appellant to a stay when the appellant posts a supersedeas bond. Since the County is excused from the bond posting requirement by Kansas statute, the County argues that the stay should be automatic. The question, then, is which rule controls: the state statute or the federal rule of procedure.

This issue was addressed by Judge Saffels in Lamon v. City of Shawnee, Kan., 758 F.Supp. 654 (D.Kan.1991). Judge Saffels held that the defendant city was not entitled to an order staying enforcement of a judgment without posting a supersedeas bond. The city argued that as a municipality it was exempt from posting a bond pursuant to Kansas statute.¹ Judge Saffels held that the federal rules rather than the state statute controlled. He noted, however, that the court's jurisdiction in that case was based on a federal question rather than diversity. Thus, there was no Erie question to address. See Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

At least one federal court has ruled that the issue of staying execution without bond during appeal is substantive rather than procedural, and therefore a state statute similar to the one in Kansas should control in diversity cases. A more recent case, however, found the opposite.

In Marrow v. City of Ferguson, 114 F.Supp. 755 (E.D.Mo.1953), the court ruled that Missouri statutes, similar to the Kansas statute, created substantive rights, not merely procedural, in dispensing with bond on appeal. This holding was endorsed in dicta by the Sixth Circuit in Joseph Skillken & Co. v. City of Toledo, 528 F.2d 867, 870 (6th Cir.1975), but has not been directly adopted by any other court.

A contrary holding is found in Markowitz & Co. v. Toledo Metro. Hous. Auth., 74 F.R.D. 550 (N.D.Ohio 1977). That court noted the Sixth Circuit's dicta, but still concluded that Erie did not control the issue of bond posting and that the Federal Rules should apply. The court also recognized the contrary holding by the Missouri court in Marrow, but noted that the Marrow decision had been made without any reasoning or citation and without the benefit of the later Supreme Court decisions in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) and Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 reh'g denied, 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958).

The Markowitz court found that the federal requirement that the appellant post a supersedeas bond pending appeal did not impinge on the appellant's substantive rights. Judgment had already been rendered and the appellant could pursue its appeal without posting bond. Bond only enabled the appellant to stay execution of the judgment, rather than recover its assets from the other party should the appellant ultimately prevail. The court observed that the state rule exempting political subdivisions from posting a supersedeas bond did not implicate the question of "`whether the litigation would come out one way in the federal court and another way in the state court' if the federal court failed to apply the state rule." 74 F.R.D. at 551 (quoting Byrd, 356 U.S. at 537, 78 S.Ct. at 900-01). The court concluded that the federal rule should control since "the supersedeas bond requirement is immaterial to resolving the merits of the parties' claims." 74 F.R.D. at 551.

This court finds the Markowitz decision to be well-reasoned and adopts its conclusion that Rule 62(d) rather than state statute controls the question of posting a bond to stay execution of a judgment. As a result, the County is not entitled to an order staying execution based solely on the state statute.

The County's second argument is that the stay should be granted based on Rule 62(f) which states:

(f) Stay According to State Law. In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled, in the district court held therein, to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state.

Fed.R.Civ.P. 62(f).

This rule entitles a judgment debtor to the same stay in the district court as would be accorded in a state court if: (1) the judgment results in a lien on the property of the judgment debtor, and (2) the judgment debtor is entitled to a stay under state law. Hoban v. Washington Metro. Area Transit Auth., 841 F.2d 1157, 1158 (D.C.Cir.1988).

Amended K.S.A. 19-108, by exempting counties from any requirement to post a supersedeas bond, implies that a county would be entitled to a stay under state law. The other requirement of Rule 62(f), however, is not met. This judgment resulted in no lien on the County's property, and therefore the County is not entitled to a stay under Rule 62(f).

Section (a) of K.S.A. 19-108, as recently amended, states:

(a) When a judgment is rendered against the board of county commissioners of any county, or against any county officer in an action prosecuted by or against the county officer in the officer's name of office, where the judgment should be paid by the county, no execution shall issue upon the judgment. The judgment shall be levied and collected by tax, as other charges. When so collected the judgment shall be paid by the county treasurer to the person to whom it is adjudged, upon delivery of a proper voucher

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