Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law, 1020 KSBJ, 89 J. Kan. Bar Assn 7, 30 (2020)

• Position: 89 J. Kan. Bar Assn 7, 30 (2020)

Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law

No. 89 J. Kan. Bar Assn 7, 30 (2020)

Kansas Bar Journal

October, 2020

September, 2020

Avoiding a Quagmire:

Acquiescence in a Judgment as a Bar to Appeal

by Casey R. Law

While researching this article, its author encountered this grace note in an unpublished Kansas appellate opinion: “Apart from acquiescence, this case presents a civil procedure quagmire. Unless absolutely necessary, I don’t venture into quagmires, especially civil procedure ones. In this case, it isn’t. So I won’t.”^[1]

There are murkier legal concepts than the doctrine of acquiescence in judgments. Yet the doctrine nonetheless presents what could fairly be called a civil procedure quagmire. First, the signposts are sometimes difficult to read. (In a few cases, they have almost been swallowed up.) Second, falling in is fatal (at least to the right to appeal from a judgment).

So—let us venture forth.

INTRODUCTION

Here is a refresher on appeal basics and appellate terminology. An appeal is the transfer of the power to decide a civil or criminal case from a lower court or other tribunal to a higher court. “The right to appeal is purely statutory[.]”^[2] Kansas statutes provide for appeals to (Kansas’ highest court, the Kansas Supreme Court, and to its intermediate appellate court, the Kansas Court of Appeals.^[3] Statutes specify those types of cases in which each of Kansas’ appellate courts has jurisdiction: the lawful power to decide the case. Generally, appeals are limited to questions of law, and may be brought only when the lower tribunal has issued a judgment or other final order.^[4] Perhaps the most important limit on jurisdiction is the deadline (generally thirty days) for fling a notice of appeal.^[5] Kansas’ appellate courts have interpreted this deadline as jurisdictional; that is, if the notice of appeal was filed untimely, the appellate courts lack jurisdiction to hear the case.^[6] The appellant is the first party to file a notice of appeal. All the other parties to the case are appellees. Appellees also become cross-appellants if they file their own notices of appeal. (Such second-or-subsequent notices of appeal in a case are “notices of cross-appeal.”)^[7]

SUMMARY OF ARTICLE

To acquiesce in a judgment means to treat it as valid and binding by accepting its benefits or its burdens. One acts inconsistently by both a) acquiescing in a judgment and b) appealing from it. The acquiescence trumps the appeal; that is, the courts dismiss the appeal of one who acts with such inconsistency. (In fact, the appellate courts hold that they have no jurisdiction to hear the appeal of the acquiescing party.)

This is “the acquiescence doctrine” or, in much of this article, simply “acquiescence.”

Though it can deprive an appellate court of the jurisdiction that it would otherwise have, the acquiescence doctrine is not based upon the constitutional rule that courts are to decide only “cases or controversies.” “Acquiescence” should, therefore, not be confused with “mootness.”

The acquiescence doctrine is similar or related to many other rules. Further, the terminology used in such cases is inconsistent; especially in older cases, the acquiescence doctrine was often applied without being named as such.

Kansas’s legislature has by statute exempted certain acts from the acquiescence doctrine.

Kansas was long thought to be much likelier to find acquiescence than most states. Whether this is still true is unclear.

Some of Kansas’s appellate opinions on the acquiescence doctrine may be impossible to reconcile with one another. A principled reconciliation of all the Kansas acquiescence opinions would challenge the acumen of a medieval theologian, and is beyond this author’s powers or audacity.

Some Kansas appellate opinions have said that an acquiescence is simply an implied waiver, thus using language that, taken in isolation, suggests that acquiescence occurs only if the appellant intended to waive the right to appeal. But that interpretation of such language is inconsistent with many Kansas appellate opinions. That is, Kansas courts have often found acquiescence even when the appellant timely, clearly, and consistently stated the intent to hold onto the right to appeal. (Acquiescence of course has the effect of an “implied waiver” of the right to appeal. But this “waiver” is usually a waiver implied in law, to which an intent to give up appeal rights is unnecessary.) There are two main common-law quasi-exceptions to the acquiescence doctrine: separability and coercion. In the first case, the plea is “I only acquiesced in a part of the judgment that couldn’t be affected by my appeal no matter what.” In the second case, the plea amounts to “I did not acquiescence in the judgment, because I was forced to ‘do’ what I ‘did’.” These could be called “quasi-exceptions” because in both cases, the litigant has not acquiesced in that judgment that is being appealed.

Under the doctrine of separability, if a single judgment concerns two or more essentially distinct matters, acquiescing in the judgment about one of the matters will not destroy the right to appeal from the rest of the judgment. A judgment is “separable” if the appellate court could theoretically overturn the part being appealed while leaving the rest intact. Under that doctrine, a plaintiff’s mere acceptance of an amount that was concededly owed to it in all events does not constitute an acquiescence.

Under the “coercion” exception, making a payment on a judgment debt does not constitute acquiescence if the payment is “involuntary.” A payment is “involuntary” if not making the payment would result sufficiently soon in consequences that are sufficiently unpleasant. The difficulty lies in deciding how unpleasant the threatened consequences must be, and how close the threat is to becoming realized. If the threat is too remote, or is not unpleasant enough, then the payment will be “voluntary,” and the acquiescence doctrine will bar the appeal.

According to some Kansas cases, the creditor’s seizing money from the debtor or a garnishee can constitute an appeal-barring “voluntary” payment if the judgment debtor does not fight hard enough to prevent the collection.

There is also a “self-protection” exception to the doctrine of acquiescence. Traditionally, this exception applied to the actions of defeated parties who gave the judgment only such “recognition” as was necessary to protect the appellant’s property from the effect of a judgment obtained by someone else (such as a mortgage foreclosure).

Whether the “self-protection” exception now extends beyond its traditional boundaries is unclear. In 2010, one Kansas panel of the Kansas Court of Appeals held that for a judgment creditor to hale the judgment debtor into court for a hearing in aid of execution constituted acquiescence, not self-protection. Shortly thereafter, another court of appeals panel criticized the first and held that, when the judgment creditor fled a garnishment with the self-protective goal of inducing the appealing judgment debtor to file a bond, there was no acquiescence so long as the garnishment yielded no money.

Pre-judgment “acquiescence” is not covered

This article will not discuss cases in which the “acquiescence” occurs before judgment, such as by failing to object timely to the court’s admitting evidence or by complying with what would now be a non-appealable interlocutory order.⁸

ACQUIESCENCE PRESENTS JURISDICTIONAL QUESTION

“Whether a party has acquiesced involves a question of this court’s jurisdiction and is a question of law subject to unlimited review.” ⁹ Since the question of acquiescence is jurisdictional, appellate courts can and do raise it sua sponte.¹⁰

ORIGIN OF THE ACQUIESCENCE DOCTRINE

Acquiescence—as name suggests, creates peace; related to finality of judgments

“Webster’s New International Dictionary defines acquiescence as: ‘Passive compliance or satisfaction: distinguished from avowed consent on the one hand, and, on the other, from opposition or open discontent.’”^[11] More generally, an “acquiescence” is a choice not to dispute something that one would have had the right to dispute.

In relation to the judgments of courts, “acquiescence” occurs when a litigant does something that the courts hold to constitute a binding recognition that a judgment has become final, that is, non-appealable.¹² In acquiescing in a judgment, the one who acquiesces gives up a right to do something (specifically, fling an appeal to a higher court) that would prevent a lower court judgment from immediately resolving the litigated dispute.

“The doctrine of acquiescence prevents a party from taking the inconsistent positions of challenging a judgment through an appeal and accepting the burdens or benefits of that judgment.”¹³ (The forbidden inconsistency is not to be confused with inconsistency in a pleading, which Kansas’ Code of Civil Procedure expressly permits.¹⁴ )

The acquiescence doctrine applies to both civil and criminal cases.¹⁵

The acquiescence doctrine seems to be—and is treated as — simply a matter of common sense

Older cases treat the doctrine of acquiescence as little more than a self-evident and reasonable expectation that litigants exhibit the consistency that is fundamental to rational human behavior. “‘Accepting the fruits of a judgment and thereafter appealing therefrom are totally inconsistent positions, and the election to pursue one course is deemed an abandonment of the other.’”¹⁶

Without using the term “acquiescence,” an old Kansas case states the doctrine eloquently. A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its...