Grand River Dam Authority v. Eaton

ALMA WILSON, J.,

dissents.

OPALA, Vice Chief Justice, with whom KAUGER, Justice, joins, concurring in denying the motion to dismiss and dissenting from the court’s opinion.

Today the court denies the appellee’s motion to dismiss and holds that a judgment debtor’s voluntary satisfaction of the adjudicated obligation no longer operates to bar an appeal unless the payment was “made with the intent to compromise or settle the matter.” Although I also would deny the appellee’s quest for this appeal’s dismissal, I cannot accede to the court’s pronouncement. There is here no need for changing the court’s jurisprudence. As the record clearly reveals, the appellants, whose payment was made involuntarily, have not acquiesced in the judgment. The issues sought to be reviewed have not hence been rendered moot.

I.

THIS APPEAL IS NOT DISMISSIBLE AND THERE IS ABSOLUTELY NO JURISPRUDENTIAL NEED FOR TODAY’S RULE CHANGE

The legislature has provided but two specific methods by which a judgment’s effectiveness may be suspended pending appeal to afford a judgment debtor protection from mid-appeal execution and from the operation of judgment lien law — one is by supersedeas bond1 and the other by cash deposit.2 The law plainly demands that an appealed judgment — to be shielded from interim enforcement and from lien attachment-+-must be secured, not voluntarily paid.3 Clearly, under the existing statu*711tory scheme, a judgment’s voluntary payment is not among statutorily authorized methods for averting execution or preventing a lien’s attachment pending appeal. Under the time-honored canon known as expressio unius est exclusio alterius, legislative approval or inclusion of one thing implies the exclusion of another.-4 Oklahoma’s currently effective common-law norm holds that when the appealing party voluntarily satisfies the judgment, any errors in it become hypothetical or academic and hence no longer available for review.5 This is consistent with the law’s two authorized alternative methods of securing liability on judgments in an appellate court’s pipeline. If a defeated litigant does not desire to invoke one of the two authorized methods, the only alternative left is to suffer execution, not to pay the judgment voluntarily.6

Confronted with an ambiguous record in this case and acting in conformity with time-honored principles of law, this court previously ordered the trial judge herein to function as its special master and determine whether the appellants’ payment of the judgment was in fact voluntary,7 Although the trial judge, who held a nunc pro tunc correction hearing, concluded that the payment had been made “voluntarily,” we are not bound by a master’s assessment of the record.8 The transcript of the nunc pro tunc proceeding reveals, without any doubt, the appellants had requested that the payment be disbursed for fear of losing their farm at a sheriffs sale,9 In *712these circumstances, the clerk’s disbursement is not to be viewed as appellants’ voluntary satisfaction of the judgment.10 In the face of appellants’ direction to the clerk for disbursement of the cash deposit — an act precipitated by appellee’s own quest for an additional amount of cash to cover costs and interest — appellee’s legal remedy was to refuse acceptance of any funds on deposit and forthwith seek a trial court’s order to strengthen the amount of cash security by raising it to the level required by the terms of 12 O.S.Supp.1983 § 706.3 (see note 7).

II.

THE COURT’S NEWLY CREATED LEGAL NORM IS IN CONTRAVENTION OF OUR STATUTORY LAW

Today, the court creates a new legal norm for appellants’ protection from mid-appeal execution by incorporating into the body of our law a textually uncounte-nanced method of a judgment’s voluntary satisfaction.11 The new rule has the potential of generating needless factual disputes in every appeal in which the judgment is paid rather than being secured by one of the two authorized statutory methods. The new rule also will precipitate a rash of restitution suits for recovery of voluntary payments on later-reversed judgments. Moreover, as shown earlier in Part I, today’s introduction of the new rule is utterly unwarranted by the record in this case.

The two statutory methods for suspending a judgment pending appeal cast on the judgment debtor the responsibility of securing the principal as well as the interest that will be due at litigation’s end.12 By allowing the obligation’s voluntary payment, the court implicitly holds that in the event of reversal the liability for interest will shift to the judgment creditor who will then be bound to make restitution of both the principal and the accrued interest. In my view, the court’s pronouncement favors the wrong parties. It accommodates judgment debtors — the parties whose appeal prolongs the litigation’s end. It is they who are relieved today from having to pay mid-appeal interest on affirmed judgments — an obligation they would bear if judgment were not paid but secured by either of the two statutory law’s authorized methods. Creditors, on the other hand, do not fare as well; they will be stuck with mid-appeal interest when compelled to make restitution following a judgment’s reversal. Unlike the court, I would leave undisturbed the legislative allocation of duty to secure mid-appeal interest. It should remain imposed on the appealing debtor. The party whose appeal postpones the obligation’s legal finality should, in the event of affirmance, bear the onus of paying interest accruable during the period between the judgment and mandate dates.

III.

SUMMARY

There are but two alternative statutory methods for a judgment’s suspension pend*713ing its review. Both mandate that the adjudicated obligation be secured. The law authorizes no other method for avoiding execution or lien attachment pending appeal. The court’s newly created avenue of relief from mid-appeal enforcement plainly contravenes the norms of existing legislative law. If a third device is indeed desired and should be introduced by case law, the most compatible nonstatutory method would be a judgment’s payment “under protest, ”13 with the two key words placed of record and accompanied by a request that, pending the appeal’s disposition, the court clerk deposit the money in an interest-bearing investment account..14 This form of relief from mid-appeal enforcement would better conform with, if not stand exactly parallel to, the statutory scheme presently in force for satisfying a public-law obligation owed to the State — e.g., an assessment by the Oklahoma Tax Commission 15 or by the Oklahoma Employment Security Commission.16

In sum, voluntary payment is not a sanctioned method for securing protection from execution or lien attachment pending appeal. A judgment debtor who appeals but decides to forgo the two statutorily authorized methods for securing a judgment must suffer execution. The court’s new legal norm for avoiding a judgment’s mid-appeal enforcement announced today plainly disturbs the symmetry of the statutory regime and the court’s extant interstitial jurisprudence condemning voluntary satisfaction of an appealed obligation.

Inasmuch as the record clearly reveals the appellants’ payment of judgment was involuntary because it was not uncoerced by appellee’s countering legal maneuvers, I would deny the appellee’s motion to dismiss *714without altering the current rule which operates to bar appellate review for all voluntarily paid judgments.

.See 12 O.S.1981 § 968, whose pertinent terms are:

"No proceeding'to reverse, vacate or modify any judgment or final order rendered in the district court ... shall operate to stay execution, unless the clerk of the court in which such judgment or final order shall have been rendered, shall take a written undertaking, to be executed on the part of the plaintiff in error, to the adverse party, with one or more sufficient sureties....” (Emphasis added.)

Although this section has been repealed effective January 1, 1991 (see Okl.Sess.L., Ch. 251, § 20), the legislature has substituted a new enactment (to become effective on the same date) which, in keeping with the past, authorizes an appellant to secure the judgment pending appeal by either a supersedeas bond or a "cash deposit.” See 12 O.S.Supp.1990 § 1007(C), whose pertinent terms provide:

“C. * * * [A]n appellant may obtain a stay of enforcement of a judgment during the pendency of an appeal by filing a written undertaking secured by a supersedeas bond or [by] cash deposited] with the court clerk. * * * ” (Emphasis added.)

. See 12 O.S.Supp.1983 § 706.2, whose pertinent terms are:

"In the event of an appeal to the Supreme Court of Oklahoma from a money judgment, the lien of such judgment ... shall cease when the judgment debtor or debtors deposit with the clerk of the court in which the judgment was rendered cash sufficient to cover the whole amount of the judgment.... Upon final determination of the action, the court clerk shall apply the deposit to any judgment that might be rendered against the depositor or depositors, and refund any balance in excess of the judgment to the depositor ... or, in the event the action is finally determined in favor of the depositor ... to refund the whole amount for the cash deposit to the depositor or depositors.” (Emphasis added.)

. Our statutory regime rejects the common law’s norm by which an automatic stay is granted ex lege for so long as proceedings in error remain pending. In re Epley, 10 Okl. 631, 64 P.18, 20 (1901); Wilks v. Wilks, Okl., 632 P.2d 759, 761 *711(1981). Stay of enforcement pending appeal is a matter of purely legislative origin and exclusive statutory regulation.

. See Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100 (1935).

. See Reece v. Chaney, 28 Okl. 501, 114 P. 608, 609 (1911); Tinker v. McLaughlin-Farrar Co., 29 Okl. 758, 119 P. 238, 239 (1911); Duncan v. Ratcliff, 63 Okl. 19, 161 P. 1174 (1916); Wallace v. Boston Mut. Life Ins. Co., 197 Okl. 468, 172 P.2d 629, 632 (1946); Pixley Lumber Company v. Woodson, Okl., 556 P.2d 596, 598 (1976).

. Voluntary compliance with a court’s order bars review. Fulreader v. State, Okl., 408 P.2d 775, 777 (1965).

. According to the paperwork on file, the appellants had invoked the terms of 12 O.S.Supp.1983 § 706.2, supra note 2, "to secure the release of the money judgment against them...." The appellee, pursuant to 12 O.S.Supp.1983 § 706.3, infra, then requested an additional cash deposit. Appellants responded by stating that, conforma-bly to 12 O.S.1981 § 27, infra, their "tender of judgment ... may be construed as receipt by the clerk of judgment and costs ... for disbursement to Plaintiff....” (Emphasis added.) This authorization was not voluntarily given; it was coerced by the appellee's countering legal maneuvers.

The pertinent terms of 12 O.S.Supp.1983 § 706.3 are:

"If an appeal of a money judgment is pending before the Supreme Court of Oklahoma, and payment of the amount of judgment has been deposited by the judgment debtor, the judgment creditor may, after giving reasonable notice set by the court to the judgment debtor or debtors, request that the court order the deposit of additional cash; and if it appears that the cash deposited is insufficient to cover the whole amount of the judgment, including interest, costs, and any attorneys fees, together with costs and interest on the appeal, the court shall order the deposit of additional cash." (Emphasis added.)

The pertinent terms of 12 O.S.1981 § 27 provide:

"Where there is no execution outstanding, the clerk of the court in which the judgment was rendered may receive the amount of the judgment and costs, and receipt therefor, with the same effect as if the same had been paid to the sheriff on an execution; and the clerk shall be liable to be amerced in the same manner and amount as a sheriff for refusing to pay the same to the party entitled thereto, when requested....” (Emphasis added.)

. A finding of a special master is reviewable de novo in this court. McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1334 (1981); Werfelman v. Miller, 180 Okl. 267, 68 P.2d 819, 820 (1937).

. In concluding that the appellants had paid the judgment voluntarily, the special master expressly relied upon two cases cited by the appel-lee, which hold that the threat of a legal right’s enforcement (i.e., execution) does not constitute coercion or duress sufficient to make a payment involuntary (see Radich v. Hutchins, 95 U.S. 210, 213, 24 L.Ed. 409, 410 (1877); Kopp v. Fink, 204 Okl. 570, 232 P.2d 161, 162 (1951)). The trial judge appears to have erroneously reasoned that since the option of a supersedeas bond was still open and available to the appellants, they failed to sustain their burden to convince the trier that the judgment’s payment was involuntary. This is a non sequitur. The gravamen of appellants’ quest for relief from dismissal is not that supersedeas was unavailable, but rather that the disbursement of their payment *712was involuntary since it was made in the course of complying with § 706.2 procedure and was intended to parry appellee's countering legal maneuvers.

.See Guin v. Security State Bank, 74 Okl. 102, 168 P. 804, 805 (1917), where the court held that "[a]payment of a judgment to prevent sale under execution or order of sale is not a voluntary satisfaction of the judgment." (Emphasis added.) See also Bush v. Aetna Building & Loan Ass’n, 51 Okl. 529, 151 P. 850 (1915) (the court's syllabus); Lucas v. First Nat. Bank of Pawnee, 171 Okl. 606, 43 P.2d 752 (1935) (the court’s syllabus ¶ 1).

. The New York case that supplies the very foundation for today’s opinion, Hayes v. Nourse, 107 N.Y. 577, 14 N.E. 508, 508-509 (1887), is incongruous with our procedural regime which creates two exclusive statutory methods for suspending a judgment’s effectiveness for enforcement and lien purposes by securing its payment.

.If an appellant chooses to secure the judgment by a bond, the terms of 12 O.S.Supp,1990 § 1007(C)(1), which are to become effective January 1, 1991, require that the bond’s amount include "costs and interest on appeal.” If a cash deposit is used in lieu of a bond, its amount is that of the judgment and what "the court determines will cover costs and interest on appeal." Section § 1007(C)(1) clearly evinces continued legislative intent not to shift to the judgment creditor the debtor’s burden for securing mid-appeal interest.

. See Empire Hardware Co. v. Young, 27 Misc. 226, 57 N.Y.S. 753, 754 (App.Term 1899), where the court held that payment of a judgment under protest does not bar an appeal.

If payment is made under protest the judgment would not be viewed as "extinguished by payment."' See Lindenborn v. Vogel, 131 A.D. 75, 115 N.Y.S. 962, 963 (1909). Although the court in Lindenborn followed the rule announced in Hayes v. Nourse, supra note 11 14 N.E. at 508-509, holding that “mere payment of a judgment, whether voluntary or through the medium of an execution, does not bar the right of appeal,” it added that “in a sense the judgment is extinguished by payment." (Emphasis added.)

. If the interest earned by the investment account is less than the statutory rate of interest due on the judgment, the trial court could require the judgment debtor to make up the difference by mid-appeal payments to be made in accordance with a pre-set periodical schedule.

. See 68 O.S.Supp.1989 § 225, infra, whose terms provide that payment of the tax assessed by the Oklahoma Tax Commission is a jurisdictional prerequisite for this court’s review of the agency's order; if the final decision favors the taxpayer, the amount paid is refunded with interest.

The pertinent terms of 68 O.S.Supp.1989 § 225 provide:

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"(c) As a condition precedent to the right of the taxpayer to prosecute such an appeal, and as a jurisdictional prerequisite of the Supreme Court to entertain such appeal, it is specifically provided that, if the appeal be from an order of the Tax Commission assessing a tax or an additional tax, penalties, and interest, the taxpayer shall pay to the Tax Commission the amounts assessed. If, upon a final determination of the appeal the order assessing such tax ... is reversed or modified and it is determined that said tax or part thereof was erroneously or illegally assessed, said amounts so paid by the taxpayer, together with the interest thereon at the rate of three percent (3%) per annum, shall be refunded to the taxpayer by the Tax Commission.” " * * * " (Emphasis added.)

.See 40 O.S.1981 § 3-405, whose pertinent terms provide;

"As a condition precedent to the right of the employer to prosecute such an appeal, and as a jurisdictional prerequisite of the district court to entertain such appeal, it is specifically provided that, if the appeal be from an order, judgment, finding, or ruling of the Commission or its duly authorized representative, assessing a contribution or an additional contribution, penalties, and interest, the employer shall pay to the Commission the amounts assessed. * * * " (Emphasis added.)

As an alternative method, a bond (for double the amount assessed) in lieu of a cash payment is authorized by 40 O.S.1981 § 3-406, whose pertinent terms are:

"In lieu of the cash payment provided for in Section 3-405 the employer may file with the Commission a bond in double the amount of the contribution, penalties and interest assessed, conditioned that he will faithfully and diligently prosecute such appeal to a final determination, and, in the event of the order ... be affirmed on appeal, will pay such contributions ... assessed against him." (Emphasis added.)