QUINTANA V. KNOWLES, 1992-NMSC-016, 113
N.M. 382, 827 P.2d 97 (S. Ct. 1992)
CASE HISTORY ALERT: see ¶18 - affects
1964-NMSC-244
GARRETT QUINTANA, Petitioner,
vs.
KIM KNOWLES, JANE KNOWLES, JAMES T. JACKSON and SHEILA
COOPER, Respondents.
SUPREME COURT OF NEW MEXICO
1992-NMSC-016, 113 N.M. 382, 827 P.2d 97
February 10, 1992, Filed. As
Corrected
Roth, Van Amberg, Gross, Rogers &
Ortiz, F. Joel Roth, Santa Fe, NM, for Petitioner.
Catron, Catron & Sawtell, John S.
Catron, Santa Fe, NM, for Respondents.
RANSOM, MONTGOMERY, FRANCHINI
{1} Garrett Quintana filed
suit to quiet title in a road that provides access to his property. The road
traverses property owned and possessed by defendants. The trial court entered a
decree in favor of Quintana declaring the road to be a New Mexico public
highway established under federal law. Defendants filed notice of appeal, but
did not move to stay the trial court's decree. Relying upon NMSA 1978, Section
39-3-9 (Repl. Pamp. 1991) (supersedeas bond requirements in actions involving
real or personal property), Quintana filed a motion in the trial court to
compel defendants to post a supersedeas bond to assure payment of any damages
occasioned by the appeal. Quintana attached an affidavit to the motion
detailing the prejudice he would suffer as a consequence of the appeal. The
trial court denied the motion, and the court of appeals affirmed.
{2} Citing
Salas v. Bolagh,
106 N.M. 613, 616,
747 P.2d 259, 262 (Ct. App. 1987), the court of appeals
stated that Section 39-3-9 does not require posting of a supersedeas bond when
there exists no judgment to stay, no change in the ownership or possession of
the property, and such bond would serve no purpose. The court of appeals
reasoned that since the appellant did not seek to stay the judgment of the
trial court, there is nothing upon which a supersedeas bond could operate. We
granted certiorari to clarify the operation of the statutory supersedeas bond
requirements and, although in sympathy with a prevailing party left in
possession of real estate whose development is harmed by reason of appellate
delay, we are compelled to affirm the court of appeals.
{3} The term supersedeas, as
it is understood in this state, is synonymous with a stay of proceedings, stay
of execution, or simply stay.
Sena v. District Court,
30 N.M. 505, 511,
240 P. 202, 204 (1925);
see also Black's Law Dictionary 1437-38 (6th ed.
1990) (noting that in modern times, term has become synonymous with stay of
proceedings).
1 During the pendency of the appeal,
supersedeas restores the parties to
{*383} and
maintains them in the status they enjoyed prior to the judgment or decree in
the trial court. In New Mexico, the legislature has made the availability of
supersedeas in all civil actions dependent on certain bonding requirements.
See
NMSA 1978, §§
39-3-9, -22 (Repl. Pamp. 1991).
2
The bond provides a means of compensating an appellee, upon an affirmance, for
damages suffered between the entry of judgment and its affirmance that would
not have been suffered but for the appeal. In addition, the bond enables the
appellee to recover the amount to which the appellee is entitled without filing
another lawsuit.
Cf. Salas,
106 N.M. 616,
747 P.2d 262 (purpose of bond
is to guarantee appellee collection of judgment should the judgment be affirmed
on appeal).
{4} The general supersedeas
bond statute, Section 39-3-22, enacted in 1907, describes the requirements a
supersedeas bond must satisfy in all civil actions. Subsection (A) conditions
supersedeas of money judgments upon the filing of an appropriate supersedeas
bond:
There shall be no supersedeas or stay of execution upon any
final judgment or decision of the district court in any civil action in which
an appeal has been taken or a writ of error sued out unless the appellant or
plaintiff in error... within sixty days from the entry of the judgment or
decision, executes a bond to the adverse party in double the amount of the
judgment complained of, with sufficient sureties, and approved by the clerk of
the district court in case of appeals or by the clerk of the supreme court in
case of writ of error.
NMSA 1978, 39-3-22(A). Where the recovery is for other than a
fixed amount of money the bond, if required, must indemnify the appellee for
certain damages:
If the decision appealed from, or from which a writ of error
is sued out, is for a recovery other than a fixed amount of money, the amount
of the bond, if any, shall be fixed by the district court if an appeal is
taken, or, in case of a writ of error, by the chief justice or any justice of
the supreme court, conditioned that the appellant or plaintiff in error shall
prosecute the appeal or writ of error with diligence, and that, if the decision
of the district court is affirmed or the appeal or writ of error is dismissed,
he will comply with the judgment of the district court and pay all damages and
costs finally adjudged against him in the district court and in the supreme
court or court of appeals on the appeal or writ of error, including any legal
damages caused by taking the appeal, whether the damages are assessed upon
motion in the cause or in a civil action on the bond.
NMSA 1978, 39-3-22(B). Only after the bond, if required, has
been approved and filed, are the proceedings stayed. NMSA 1978, 39-3-22(C).
{5} In 1933, the legislature
enacted Section 39-3-9, the property supersedeas bond statute, that establishes
the bonding requirements for supersedeas in actions involving title to or
possession of real or personal property:
Where an appeal is taken or a writ or error sued out, from a
judgment or decree of any district court involving the title to or possession
of real or personal property, the trial court shall fix the amount of the
supersedeas bond, if supersedeas is granted, for such sum as will indemnify the
appellee for all damages that may result from such supersedeas, or from such
appeal or writ of error. Said bond shall be conditioned to prosecute the appeal
with effect and pay all damages and costs that may result to the appellee, if
said appeal or writ of error be dismissed or the judgment or decree appealed
from shall be affirmed. In case the title to or possession of real estate is
involved in such action, the rental value and all damages to improvements and
waste, shall be considered elements of damages.
{6} Quintana asserts that
Section 39-3-9 makes the posting of a bond a prerequisite to the right to
appeal from any judgment
{*384} involving
title to or possession of real or personal property, whether the appellant has
sought supersedeas or not, if the appellee establishes that the appeal will
prejudice the appellee. We are not so persuaded.
{7} Our touchstone in
interpreting Section 39-3-9 is the language of the Statute.
See State v.
Elliott,
89 N.M. 756, 757,
557 P.2d 1105, 1106 (1977) ("Statutes are
to be given effect as written and, where free from ambiguity, there is no room
for construction.") Section 39-3-9 expressly provides that "the trial
court shall fix the amount of supersedeas bond, if supersedeas is
granted." Thus, as a precondition to operation of that Section, the appellant
must have moved for supersedeas, and the trial court must have granted the
motion.
3 Nothing in the plain language of the
Statute requires the appellant to post a supersedeas bond when supersedeas has
not been sought and granted.
See Gregg v. Gardner,
73 N.M. 347, 362,
388
P.2d 68, 79 (1963) (noting in dictum that general supersedeas bond statute is
not mandatory, bond is required only if status quo is to be maintained). Only
if supersedeas is sought does Section 39-3-9 come in to play first by mandating
that the trial court shall set the amount of the bond
4
and then by describing the nature of the bond required to stay a judgment or
decree involving the title to or possession of real or personal property.
Properly understood, Section 39-3-9 conditions the availability of supersedeas,
in part, on the posting of a statutorily sufficient bond; it does not, as
Quintana would have it, condition the right to appeal on the posting of a bond.
{8} Quintana offers three
arguments in favor of his construction of Section 39-3-9. First, he contends
that by stating that the bond shall indemnify the appellee for damages
resulting from the "supersedeas, or from such appeal or writ of
error," Section 39-3-9 evinces the legislature's intention to require a
bond for damages arising from all appeals within the purview of Section 39-3-9.
While we confess that the purpose of that language is less than clear, the
inference Quintana asks us to draw is at best tenuous. In construing Section
39-3-9, we must bear in mind that in New Mexico every aggrieved party enjoys
the constitutional right to one appeal. N.M. Const. art. VI, 2. Accordingly, we
are hesitant to draw inferences from Section 39-3-9 that condition or hamper
that right when the plain language of the statute is clear, and the legislative
history does not suggest otherwise. The bond required by Section 39-3-9 is a
supersedeas bond. Section 39-3-9 is entitled "Title or possession of
property involved; supersedeas bond." Such device is universally
understood to mean a bond posted as a condition to securing supersedeas. The
interpretation Quintana would have us adopt would fundamentally alter the
accepted meaning of that term -- supersedeas bond under Section 39-3-9 would
become a general appeal bond to be posted by every appellant upon the filing of
an appeal.
5 Nothing in the language of
{*385} Section 39-3-9 reveals the
legislature's intention to condition the constitutional right to one appeal or
to alter the accepted meaning of the term supersedeas bond. Absent any such
intention, we will not so condition the right.
{9} Nor are we persuaded by
Quintana's argument that our construction of Section 39-3-9 renders that
Statute "at best fluff which simply reconfirms some of the rights of
appellees which have been created by statute fifteen years earlier."
Quintana contends that Subsection 39-3-22(B), enacted prior to Section 39-3-9,
fully described the bonding requirements for appeals from judgments awarding
recovery for "other than a fixed amount of money," which would
include all cases falling under Section 39-3-9. He urges that our
interpretation of Section 39-3-9 would conflict with the rule of construction
that presumes the legislature, when enacting new legislation, intends to change
the existing law.
{10} At the outset, we note
that rules of construction cannot supplant the plain command of the language of
a statute.
See Bradbury & Stamm Const. Co. v. Bureau of Revenue,
70
N.M. 226, 231,
372 P.2d 808, 812 (1962) (rules of statutory construction are
but aids in arriving at legislative intent and should never be used to override
same where it otherwise plainly appears). Here, as noted above, the statutory
command of Section 39-3-9 is clear. While we need go no further, we nonetheless
address Quintana's argument.
{11} True, Subsection
39-3-22(B) is sufficiently broad to include cases falling under Section 39-3-9.
However, when Section 39-3-9 was enacted, the general supersedeas bond statute
did not require the bond to indemnify for "legal damages caused by taking
the appeal."
6 The question whether the general
supersedeas bond statute would make the surety liable under the bond for rents
and profits lost during the pendency of an appeal from a judgment or decree
concerning real property, had not been resolved at the time the property
supersedeas bond statute was enacted.
See Hart v. Employers Liab. Ass'n
Corp.,
38 N.M. 83,
28 P.2d 517 (1933) (noting considerable confusion
"in the profession" concerning the issue).
7
Against that backdrop of uncertainty, Section 39-3-9 made clear that at least
with respect to actions involving title to or possession of real estate, the
bond must indemnify the appellee for certain legal damages occasioned by the
operation of the stay: "Rental value, and all damages to improvements and
waste, shall be considered elements of damages." NMSA 1978, 39-3-9. We are
aware of no doctrine that would preclude the coexistence of a general statute
and a more specific statute.
{12} Finally, citing
Burroughs
v. United States Fidelity & Guaranty Co.,
74 N.M. 618,
397 P.2d 10
(1964), Quintana contends our construction of Section 39-3-9 is at odds with
our case law. Because our case law interpreting Section 39-3-9 is consistent
with our holding today and because
Burroughs is inapposite, we disagree.
{13} In
Higgins v. Fuller,
48 N.M. 215,
148 P.2d 573 (1943), this Court first construed
{*386}
the operation of the property supersedeas bond statute. At issue in
Higgins
was whether the appellant's failure to post the supersedeas bond ordered by the
trial court was fatal to the appeal. The appellant had lost her action to
obtain title to certain real property in the possession of the appellee. The
appellant filed notice of appeal, and the trial court ordered her to post a
supersedeas bond. When the appellant did not post the bond, the appellee filed
a motion to dismiss the appeal. This Court held that the trial court erred in
requiring the supersedeas bond and, thus, denied the motion to dismiss the
appeal. In so doing, the Court construed the property supersedeas bond statute
to require a bond only if the party in possession appealing from an adverse
judgment seeks to preserve the status quo:
We construe the statute to mean that should judgment go
against a litigant by decreeing ownership to realty in his adversary out of
possession, then, in connection with his appeal, such litigant must execute
and file a supersedeas bond as required by the court and as provided by this
statute, in order to maintain the status quo.
The only purpose of supersedeas bond is to stay the judgment,
and if there be nothing to stay there is nothing upon which a supersedeas could
operate.
Id. at 217, 148 P.2d at 574 (emphasis added); accord
Salas, 106 N.M. 616, 747 P.2d 262. This is the substance of our holding
today.
{14} The crux of the
Higgins
holding is no more than the observation that where no stay has been sought, a
trial court, under Section 39-3-9 cannot order the appellant to post a bond.
Nothing more need have been said. The trial court ordered the appellant to post
a supersedeas bond when supersedeas had not been sought. Accordingly, such
order was a nullity and noncompliance with it was not fatal to the appeal.
8
{15} In dictum, the Court
articulated independent grounds for denying the motion to dismiss. The Court
observed that, under prior statute, a motion to dismiss will not succeed in the
absence of a showing of prejudice.
Id. at 218, 148 P.2d at 574 (citing
NMSA 1941, 19-201(16)(4)) (no motion to dismiss an appeal for other than jurisdictional
grounds will succeed in the absence of a showing of prejudice) (superseded by
NMSA 1953, 21-2-1 (Supp. 1974)). Since the appellee in
Higgins made no
showing of prejudice, the motion was not well taken. The prejudice discussed in
Higgins, contrary to Quintana's suggestion, has nothing to do with
whether a supersedeas bond is required; prejudice was a component of a motion
to dismiss an appeal for other than jurisdictional grounds under the prior
statute.
{16} This Court revisited
Section 39-3-9 in
Burroughs. There, in the first action, Burroughs
brought suit in replevin to recover possession of a tractor and trailer. He
filed a replevin bond, and the tractor and trailer were delivered to him.
Burroughs won at a trial on the merits, and the defendants appealed. The
defendants executed and filed a supersedeas bond, and Burroughs returned the
tractor to them. We affirmed the judgment and ordered the district court to
enter judgment against both the defendant and the surety on the supersedeas
bond.
Burroughs, 74 N.M. at 619, 397 P.2d at 11.
{17} Burroughs brought a new
action against the surety on the bond, and recovered a judgment for $9,000,
representing the value of the tractor and trailer. The surety appealed
asserting that the bond did not
{*387} authorize
delivery of possession, and that the bond secured only costs on appeal, not the
value of the tractor and trailer. The issues before this Court concerned
whether the supersedeas bond authorized re-delivery of the tractor and trailer
to Burroughs, and whether the bond secured the value of the tractor and trailer
in addition to costs and interest accrued from the date of judgment.
Id.
at 621-22, 397 P.2d at 12. The Court held that the bond secured the value of
tractor and trailer and that the surety was estopped from complaining about the
transfer of possession.
Id. at 625, 397 P.2d at 14-15.
Burroughs
did not address the question whether Section 39-3-9 requires a bond in the
absence of supersedeas.
{18} Quintana cites to dictum
in
Burroughs in support of his interpretation of the statute. There the
Court interpreted
Higgins to have held that the property supersedeas
bond statute may require an appellant, who has not sought to stay execution on
the judgment, to execute a supersedeas bond if the appellee can demonstrate
that the appeal will work to the appellee's prejudice.
Burroughs, 74
N.M. at 624, 397 P.2d at 14. As we discussed above, that interpretation of
Higgins
or Section 39-3-9 is unwarranted. We expressly overrule any such inferences
drawn from
Burroughs to the extent they conflict with our holding today.
{19} For all of the foregoing
reasons, the judgment of the court of appeals is affirmed.
MONTGOMERY and FRANCHINI, JJ., concur.
1
The United States Supreme Court defined supersedeas in its original narrow
context as a special writ emanating from an appellate court that effects
"a suspension of the power of the court below to issue an execution on the
judgment or decree appealed from; or, if a writ of execution has issued, it is
a prohibition emanating from the court of appeal against the execution of the
writ." Hovey v. McDonald, 109 U.S. 150, 159 (1883).
2
The procedures for obtaining supersedeas relief are set out in SCRA 1986,
1-062, 12-207.
3
Section 39-3-9 is not artfully drafted. Section 39-3-10 provides that Section
39-3-9 is to supplement any existing statute or court rule concerning supersedeas.
When Section 39-3-9 and Subsection 39-3-22(C) are read together, it is clear
that while the trial court may grant the motion for supersedeas, the stay shall
not become effective until the appropriate bond has been posted by the party
seeking the stay.
4
In this respect, Section 39-3-9 differs from Section 39-3-22. The latter
requires a justice of this Court to approve the bond when relief from the
decision below is sought by writ of error, while the former does not.
5
Our interpretation of the plain meaning of the term supersedeas is consistent
with the views expressed by the high courts of our neighboring states that have
enacted statutory supersedeas bond requirements. See Burke v. Dendinger,
234 N.W. 405, 405 (Neb. 1931) (holding that compliance with supersedeas bond
statute is not prerequisite to appellate review); Armstrong v. Trustees of
Hamilton Inv. Trust, 667 P.2d 985, 988 (Okla. 1983) (holding that
supersedeas is not jurisdictional requirement for appellate review; appeal may
be prosecuted without posting bond); Hutchings v. Winsor, 217 P. 1044,
1045 (Okla. 1923) (holding that only purpose and effect of supersedeas bond is
to stay execution upon the judgment appealed from; right of appeal does not
depend upon the giving of such bond), overruled on other grounds by Pancoast
v. Eldridge, 11 P.2d 918, 920 (Okla. 1932).
6
As enacted in 1907, the pertinent part of the general supersedeas statute
provided that the amount of the bond "be fixed by the district court or
the judge thereof, and in case of a writ of error, by the chief justice or any
associate justice of the supreme court." N.M. Laws 1907, ch. 57, 16. Like
the current version, the original enactment also provided that the bond be
conditioned so that "if the decision of the court below be affirmed or the
appeal or writ of error be dismissed [the appellant] will comply with the
decree of the district court and pay all damages and costs adjudged against him
in the district court and in the supreme court on such appeal or writ of
error." Id. Not until 1966 did the general supersedeas statute
require indemnification for "legal damages caused by taking the
appeal." N.M. Laws 1966, ch. 28, 50. We fail to see any conflict with the
rule of construction cited by Quintana. The property supersedeas bond statute,
when it was enacted, resolved considerable uncertainty in the existing law. The
1966 amendment did no more than to require similar bonding requirements in
cases not within the purview of Section 39-3-9.
7
Section 39-3-9 was approved by the legislature on February 10, 1933. Hart
was decided on November 29, 1933. The supersedeas bond in that case, was filed
to stay enforcement of the judgment well before Section 39-3-9 became
effective. See Hart v. Walker, 35 N.M. 465, 2 P.2d 1074 (1931)
(affirming the stayed judgment on July 3, 1931).
8
There is much surplusage in Higgins upon which Quintana and later
opinions have affixed significance. For example, the above-quoted passage makes
reference to a litigant out of possession. Higgins, 48 N.M. at 217, 148
P.2d at 574. Surely, if a party not in possession loses at trial, then
supersedeas of the adverse judgment would have no effect on the rights of
either party -- the rights of the parties inter se are the same after the
judgment as they were before. This is what the Court suggests when it later
mentions that the case before it involved "no change in the status of the
parties" and that there was "no judgment to stay." Id. In
fairness, these statements probably clarify the procedural context in which a
party would seek supersedeas. We emphasize, however, that such statements
cannot be read to describe when a supersedeas bond will be required under
Section 39-3-9.