The opinion
Stephenson, Presiding Judge,
concurring in part and dissenting in part.
I concur with the majority judgment and opinion insofar as it addresses the merits of this case. We have an anomalous situation here where the trial court clearly contemplated future discovery on the one hand, but rendered summary judgment for appellee on the other hand. I am aware of no reported decision which considers this unusual situation, but I agree with the majority that the best alternative is to remand this case to allow for future discovery in compliance with the protective order.
I am not persuaded, however, that appellee’s motion to dismiss should be overruled. Thus, I respectfully dissent from that portion of the judgment and opinion.
It is a well-settled proposition of law that where a court has entered a judgment and that judgment is
voluntarily
paid and satisfied, such payment puts an end to the controversy and takes away from the defendant the right to appeal.
Blodgett v. Blodgett
(1990), 49 Ohio St.3d 243, 245 , 551 N.E.2d 1249, 1250 ;
Rauch v. Noble
(1959), 169 Ohio St. 314 , 316, 8 O.O.2d 315 , 316,
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159 N.E.2d 451 , 453;
Lynch v. Lakewood City Bd. of Edn.
(1927), 116 Ohio St. 361 , 156 N.E. 188 , paragraph three of the syllabus. Therefore, the determinative issue after a judgment is paid and satisfied is whether such payment was voluntary (thereby rendering any appeal moot) or involuntary (thus preserving the right to appeal).
Appellants contend that their payment of the judgment below was involuntary because it was made “solely to prevent the sale of real property.” I do not find this persuasive. While the record does reveal that a certificate of judgment was issued against appellants, there is no indication of a subsequent action to execute that lien against any specific property. Moreover, appellants could have forestalled any execution of the lien during the pendency of this appeal through the virtually automatic stay provisions of Civ.R. 62(B). I, therefore, am not persuaded by the argument that payment of the judgment was involuntarily made.
In my opinion, the better approach to take in analyzing this case is that taken by the Franklin County Court of Appeals in
Kelm v. Hess
(1983), 8 Ohio App.3d 448 , 8 OBR 572, 457 N.E.2d 911 . In that case, the court rejected the argument that payment of a judgment was involuntary simply because it was made under a threat of impending garnishment. The basis for the court’s decision was that the parties therein would have been entitled to a stay of the trial court’s judgment, as a matter of right, upon giving adequate bond.
Id.
It was concluded that if the appellant was able to pay the judgment in the first place, he would have, undoubtedly, been able to give an adequate appeal bond. Thus, the payment was not found to be involuntary and the cause was dismissed as moot.
This reasoning is intuitively logical. An appellant has a right to a stay of execution under Civ.R. 62(B) and, in almost all instances, the trial court is required to grant the same and set a supersedeas bond. Whiteside, Ohio Appellate Practice (1987) 53, Section 11.04. It is, therefore, difficult to argue that a payment was involuntary when Ohio law provides an option to stay such payment, but that option is ignored or rejected. Such was the holding in
Kelm, supra,
as well as a number of cases decided in other jurisdictions. See,
e.g., First Security Bank v. Income Prop., Inc.
(1984), 208 Mont. 121, 126 , 675 P.2d 982, 985 ;
Lytle v. Citizens Bank
(1982), 4 Ark.App. 294, 296 , 630 S.W.2d 546, 547 .
In the cause
sub judice,
there is no indication in the record that appellants ever sought a stay of the judgment rendered against them. I am, therefore, not persuaded that their payment of such judgment was involuntary and, consistent with the holding in
Kelm, supra,
I would dismiss the cause as moot.