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State ex rel. Storbakken v. Scott's Electric, Inc.

Supreme Court of North Dakota

May 12, 2014

State of North Dakota ex rel. Bonnie L. Storbakken, Commissioner of Labor, for the benefit of Patrick Anderson, Adam Barton, Greg Boumont, Jason Richter, Michael Rick, Rick Schake, and Zach Scheeley, Plaintiff and Appellee
v.
Scott's Electric, Inc., Defendant and Appellant

Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

AFFIRMED.

Douglas B. Anderson, Office of Attorney General, for plaintiff and appellee.

Leslie B. Oliver (argued) and Robert J. Pathroff (appeared), for defendant and appellant.

Daniel J. Crothers, Dale V. Sandstrom, Ronald E. Goodman, S.J., John C. McClintock, Jr., D.J., Gerald W. VandeWalle, C.J. The Honorable John C. McClintock, Jr., D.J., and the Honorable Ronald E. Goodman, S.J., sitting in place of Kapsner, J., and McEvers, J., disqualified.

OPINION

Page 328

Crothers, Justice.

[¶1] Scott's Electric, Inc., appeals from a judgment awarding the State, for the benefit of seven employees of Scott's, $149,551.03 in unpaid wages, penalties and interest relating to uncompensated travel time. We affirm, concluding the district court's findings of fact are not clearly erroneous and the court did not missapply those facts to the controlling law.

I

[¶2] Scott's is an electrical contracting business that provides commercial, residential, industrial and farm services within a 250-mile radius of its home base in Wahpeton. During the relevant period, Scott's had between three to five large commercial jobs, two to three small commercial projects and one to two underground utility jobs ongoing at the same time. Scott's maintained a fleet of company-owned vehicles that provided transport for employees and equipment from the home base to various jobsites.

[¶3] Scott's employed Patrick Anderson, Adam Barton, Greg Boumont, Jason Richter, Michael Rick, Rick Schake, and Zach Scheeley as journeymen or apprentice electricians. In 2008, they filed claims with the North Dakota Department of Labor seeking unpaid wages from Scott's for travel time while driving company-owned vehicles. Their claims for unpaid wages spanned from April 1991 to March 2008. After investigating the claims, the Department notified Scott's of the wage claim determinations and requested

Page 329

payment of wages the Department determined to be valid and enforceable.

[¶4] After unsuccessful efforts to collect the unpaid wages, the Department took assignments in trust for wages from the claimants and brought this action against Scott's under N.D.C.C. ch. 34-14 to collect the unpaid wages, penalties and interest. After a bench trial, the district court ruled in favor of the Department and awarded a judgment for unpaid wages, penalties and interest against Scott's for $149,551.03.

II

[¶5] After filing its notice of appeal, Scott's offered to pay the State an amount for " Undisputed Wages, Penalties and Interest (8/27/2013)." Scott's did so and a " Partial Satisfaction of Judgment for Undisputed Wages, Interest, and Statutory Penalties" for $48,236.44 was entered on December 23, 2013. On appeal, Scott's seeks reversal of the judgment and requests this Court to " render a take-nothing judgment in favor of Scott's." The State contends the request for a " take-nothing judgment" is barred to the extent of its post-judgment payment of " undisputed" wages, penalties and interest. Scott's did not respond to the State's argument in its reply brief and continues to request this Court to " render a take-nothing judgment" in its favor.

[¶6] This Court follows the rule that " a party who voluntarily pays a judgment against him waives the right to appeal from the judgment." Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 9, 719 N.W.2d 346; see also Mr. G's Turtle Mountain Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 11, 651 N.W.2d 625; DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432; Twogood v. Wentz, 2001 ND 167, ¶ 5, 634 N.W.2d 514; Lyon v. Ford Motor Co., 2000 ND 12, ¶ 13, 604 N.W.2d 453. We have not specifically addressed whether a voluntary partial payment or satisfaction of a judgment for damages constitutes a waiver of the right to appeal. Courts in other jurisdictions have reached divergent results depending on the particular facts and circumstances of the case. See, e.g., E.H. Schopler, Annotation, Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 A.L.R.2d 153, § 12 (1955); 4 C.J.S. Appeal and Error § 280 (2007). We need not resolve the issue here because cases addressing the question generally involve situations where the partially satisfied portion of the judgment remains disputed in the appeal. In this case, the partial payment relates to wages, penalties and interest Scott's represented to be an " undisputed" liability.

[¶7] The district court found Scott's " acknowledged throughout the course of the proceedings that wages were due the wage claimants, however, as of the date of trial such wages remained unpaid." After entry of judgment, Scott's paid what it claimed to be the " undisputed" amount of wages, penalties and interest. Scott's request on appeal for reversal and entry of a " take-nothing" judgment violates the well-established principle that " arguments not raised before the district court cannot be raised for the first time on appeal." Morris v. Moller, 2012 ND 74, ¶ 8, 815 N.W.2d 266.

[¶8] Scott's cannot on appeal dispute its " undisputed" liability. Therefore, Scott's did not waive the right to appeal from the judgment by partially satisfying the judgment. However, Scott's only may challenge the judgment in excess of the " ...


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