*1 nation of the District Court does not fall

n within any recognized exception to the fi- Thus,

nal rule. we dismiss

appeal.2 is:

Appeal dismissed.

2001 ME 128

A.F.A.B., INC.

TOWN OF OLD ORCHARD BEACH.

Supreme Judicial Court of Maine. May

Submitted on Briefs: 2001. Aug.

Decided: lesting gear pursuant process rights lobster to Title due when it allowed State chapter injured parly appears if the to be heard on his motion is without merit. judge writing before the and in may, The court in the discre- exercise acknowledges injury, satisfaction for the tion, charge objection dismiss over the court, costs, stay on of all State, acquies- or "without the [State's] proceedings discharge further the de- Young, cence.” State v. 476 A.2d judge may fendant. The exonerate bail (Me. follow, however, 1984). It does not obligors, supersede and release the the State not be heard. The State is a commitment written order and exoner- proper party proceeding. necessary and ate the bail of the witnesses. (recording appearance id. at 186 15 M.R.S.A. 891 State). Attorney General behalf Young’s accept contention that we must appeal because the his District Court violated *2 Weinstein, Beach, Orchard

Neal L. Old plaintiff. for the Bernstein, Cunningham, Gregory M. Portland, Shur, Nelson, for the Sawyer & defendant. WATHEN, C.J.,

Panel: tion” recovered a in the amount CLIFFORD, RUDMAN, DANA, Sep- Town.1 On 20, 1995, SAUFLEY, ALEXANDER, it paid judg- tember before ment, CALKINS, the Town received two notices of JJ. *3 indicating that “Timo- the IRS DANA, J. thy “Timothy Swenson” and Swenson A.F.A.B., appeals [¶ 1] Inc. from the AFAB a total of Construction” owed (York judgment of Superior Court $36,807.76 unpaid days in later taxes. Six J.) Fritzsche, County, granting in paid the Town this amount to the IRS. in part its motion for reissuance of denying date, that [¶ On same Town wrote 5] a writ of execution. AFAB contends the stating a letter to counsel for AFAB that in reducing court erred the writ an “[ujnder law, obligated federal the Town is paid by the Town of Old Orchard pay to these amounts to the Internal Reve- Service, Beach to the Internal Revenue Service, notwithstanding nue that the tax- in failing to allow certain payer dispute have a with the IRS interest. We affirm in part, and over the amounts due.” The Town further part. vacate stated that it would write a check for $14,844.47, amount due to I. BACKGROUND AFAB, if AFAB a release “ac- This is the [¶ 2] fourth time this case has that knowledging judgment has been been before us. haveWe set out the facts satisfied in full payment Town’s to in prior opinions action, in this same payment IRS and to AFAB.” A.F.A.B., Inc. v. Town release, Old Orchard sign did not and the Town did Beach, (Me.1992) (AFAB I); 610 A.2d 747 pay not balance of the A.F.A.B., Inc. v. Town Old Orchard AFAB. Beach, (Me.1994)(AFAB II); 639 A.2d 103 30, 2000, AFAB, By August [¶ 6] A.F.A.B., Inc. v. Town Old Orchard having any payment, received filed a mo- Beach, (AFAB (Me.1995) 657 323 tion for reissuance the writ of execution. III), repeat and will only facts responded The Town that the writ must be necessary extent to address the discrete discounted the amount it paid issues appeal. raised IRS, and that ac- after crued its 1995 offer of Inc., In [¶ 3] “A.F.A.B. d/b/a hearing, should be waived. After A.F.A.B. complaint Construction” filed a Superior Court issued an order on alleging unjust breach of contract and en- December 2000 that: “A writ of execu- dispute richment. This arose out of a 1988 tion reissue the amount of contract by “Timothy entered into Swen- $14,854.47. pay- This amount reflects the Construction, son later in- d/b/a ment of Internal Revenue Service corporated as Inc.” perform AF.A.B. liens.” repairs and at Ballpark renovations Old Orchard Beach. AFAB completed II. DISCUSSION fully compensated.

work but was never Levy A. Tax Federal 8, 1995, following On June III, stating a writ of Revenue execution issued Internal Code unpaid “A.F.A.B. Inc. taxes provides A.F.A.B. Construe- the collection d/b/a $35,000 interest, judgment, $168.50 This includes interest, prejudgment $4054.11 costs. 834 execution, attachment or claim administrative (1989 is not the tax

§§ Supp.2001).2 & This 6331-6344 Nat’l Bank payer’s Com “expeditious levy process,” administrative merce, 721-22, 2919; at 472 U.S. S.Ct. States, Farr v. United F.2d 6332(a). 26 U.S.C.A. (9th Cir.1993), allows IRS to collect delinquent taxes without interven [¶ The Code incentives 8] tion, Co., Capital Trust Kane Guardian levy. Any per comply notices (10th Cir.1998). F.3d prop refuses to son who fails or surrender also v. Nat’l Com United States Bank of erty the IRS for liable 720, 105 merce, 2919, 86 472 U.S. S.Ct. and an value of the additional *4 (1985). requires Section L.Ed.2d 565 6332 specified if refusal is rea penalty without of any possession in person property 6332(d). § sonable Id. On the cause.3 levy which made to it a has been surrender hand, complies person other a who with a upon to the IRS. 26 U.S.C.A. demand levy any is from or discharged obligation 6332(a) Only § (Supp.2001). defenses two liability taxpayer any and other to the are for a who fails to com available the person respect to surrendered with (1) 6332(e). ply levy: § the property. According with a tax claim that to Id. however, subject in regulation, person in is to federal property possession percent penalty equal of 2. Section 6332 is the relevant in this to 50 the amount section (I). pertinent paragraph part matter. It recoverable under No penalty against of such shall be credited the (a) Requirement. Except otherwise as — liability tax for the collection of which such section, provided any person pos- in this levy was made. levy property subject ... to session of ... (e) honoring levy. Any person Effect — shall, upon levy has which a been made possession property subject ... to of ... upon Secretary, the demand of surrender who, levy levy upon which a has been made property Secretary, except to the such ... Secretary, upon by demand surrenders is, property ... at the such as property such ... ... shall demand, subject attach- time of such to an obligation discharged any be or liabili- pro- any judicial under ment or execution ty delinquent taxpayer any and other cess. person respect property ... with to such arising payment. surrender from such or (d) levy.— Enforcement § U.S.C.A. personal liability. Any Extent of — person or refuses to who fails surrender “person,” 3. A as defined levy, property ... to demand 6332(f) (Supp.2001), § "includes or an officer Secretary, be shall liable in his own employee corporation or a of a member person and estate to the United States in a employee partnership, who as such offi- property value of ... sum cer, duty is employee, or member under a to surrendered, exceeding but not not so rights property property, surrender the of taxes for the collection of which obligation.” Contrary discharge or to made, levy together been with such has "per- the Town is AFAB’sassertion that not such the un- and interest on sum at costs 6332, meaning of this son” within the section (other Any derpayment rate .... interpretation given is a broad definition costs) paragraph recovered under than applicable municipalities. v. is See Sims against liability for shall be credited tax States, United 359 U.S. 79 S.Ct. levy such made. collection of which (1959) ("Congress 3 L.Ed.2d 667 intended (2) Penalty for violation.—In addition ‘per- States within the term did include liability imposed paragraph personal 6332.”); § son’ as used in United States (1), required any person to surrender if (7th Village Alsip, 345 F.2d Cir. property ... fails or refuses to surrender 1965) ("Section against enforceable property ... reasonable such without cause, municipalities.”). person shall liable for a such be property mistakenly who under section 7426.”5 26 C.F.R. 301.6332-l(c)(3) (2000). property taxpayer surrenders which the apparent has no is not immune In compliance person from suit a third who has an money to the Town surrendered 26 C.F.R. of the receipt IRS on notices 301.6332-1(c)(2) (2000).4 argues judg there is a because favor of “A.F.A.B. Inc. d/b/a appropriate remedy [¶ 9] The Construction,” and the notices of one who believes a notice of to be “Timothy name Swenson” and “Timo wrongful is to surrender property thy Swenson Construction” as the bring an government. action the federal delinquent taxpayers, the Town did not ate Bank Fraser v. United St possess taxpayers and was States, (6th 861 F.2d 961 n. 6 Cir. required property.6 to surrender 1988). “[Tjaxpayers parties and third who assuming Even that the Town surrendered have an interest surrendered A.F.A.B., corporate property of Inc. for in response levy may to a secure from the Swenson, individual tax liabilities of *5 Internal Revenue Service the administra appropriate remedy is administrative or 6343(b) tive provided relief for in section legal against relief the IRS. Pursuant may bring or suit to recover the property section the Town was relieved of its (3) part: This section money equal relevant an amount of to the money amount of received the United (2) Exception incorrectly certain surren- property. States from the sale of the property. Any person dered who surrenders Property may any be returned at time. An to the Internal Revenue property Service money to the amount of lev- properly subject ... levy in which the may ied or received from such sale be delinquent taxpayer apparent has no inter- any at expiration returned time before the liability est is not relieved to a third of 9 levy. months from the date of such who has an property. interest in the How- 6343(b) § Section ever, delinquent taxpayer if ap- the has an 7426, authorizing by persons civil actions oth- parent property person interest a ... taxpayers, provides part: er than in relevant who makes a faith determination that levy property If a has been made on properly such possession ... in his or her property pursuant levy, has been sold ato upon by has been levied the Internal Reve- (other any person person against that the prop- nue Service and who surrenders the whom is assessed the tax out of which such erty response to the United States in to the arose) levy who claims an interest in or lien liability is relived a [sic] third property property on such and that such party who has an property interest in the wrongfully upon may bring was levied subsequently ... it even if is determined civil action the United States in a property that the properly subject was not district court of the United States. Such brought regard action be without 301.6332-l(c)(2) (2000). § 26 C.F.R. whether such has been surren- Secretary. dered to or sold the authorizing Section release 7426(a)(1) (Supp.2001). 26 U.S.C.A. property, provides and return of in relevant argues money 6.AFAB also the surrendered (b) Return of subject was to “execution under ... —If 6332(a), wrong- determines that process,” contemplated by has been as fully upon, levied it shall be for the lawful because in the Town’s Secretaiy to return— to a writ of execution in favor of (1) execution, specific property upon, judgment levied AFAB. The and writ of however, money equal nothing an amount of did create more than money upon, money amount of levied AFAB’s interest in the surrendered. respect judgment

obligation with to the surrendered interest present. completed money, and the court did not err reduc- 1995 to the ing Ballpark repairs renovations paid the writ judgment IRS. and a and writ of execution favor of AFAB in June 1995. Al- issued B. Post-Judgment Interest though promptly the Town surrendered a portion judgment IRS Title 14 M.R.S.A. 1602- has paid it never amount to A in (Supp.2000)7 controls Further, offer to pay AFAB. the Town’s con terest. review the trial court’s “We judgment if portion struction of does not demon- release errors of statuto statute for law. Because cannot strate cause as the Town con- law, ry construction is a matter of we dition without the meaning of regarding review decisions consent of court. Given Town’s Austin, statute de novo.” Austin history nonpayment, without ¶61, 8, ME 999-1000. interest AFAB not ever receive “Post-judgment money legally to which it is entitled. that, tool once an enforcement to ensure is: successfully have litigants invoked courts, power just the award Judgment reducing amount of writ of will not compensation be diminished affirmed; judgment denying execution Empire delay payment.” Moholland v. vacated. Remand- post-judgment interest ¶ Co., 26, 7, Fire & Marine Ins. 2000 ME Superior ed to the Court for calculation of *6 per A.2d “Section 1602-A $14,844.47 on post-judgment interest levying of interest post-judgment mits the 26,1995 to date.

on and after nonprevailing party ‘from entry judg date of an order of SAUFLEY, J., opinion and files dissents ” ¶ Austin, 9, 748 ment.’ 2000 ME joined by and CLIFFORD 1602-A). (quoting A.2d at 1000 ALEXANDER, JJ. “grants court This section also the trial post- J., discretion to waive some or all of SAUFLEY, with whom CLIFFORD judgment presentation ALEXANDER, JJ., join, dissenting. and petition and [by nonprevailing party] analysis I concur in [¶ 14] the Court’s ¶ 10, showing good on a of cause.” Id. exception. and conclusions one I do with at 1000. conclusion that agree the Court’s exceeded the the trial court exceeded the bounds of its [¶ 13] by waiving post- of its discretion when it waived bounds discretion price auction the last auction a 52- This section in relevant Treasury United bills settled week States and after the on an From date immediately prior the date from which judgment, including period of order calculated, plus the interest pendency appeal, of an interest shall be 1%. allowed at a rate: petition nonprevailing party and On cause, actions, showing trial court on a 2. Other action. For other may order that awarded this coupon yield equivalent, as issue fully partially section snail be waived. the United States determined accepted Treasury, average 14 M.R.S.A. 1602-A Thus, I respectfully interest. must dissent the factors and the law materi- understand Bpart opinion. decision, of the Court’s weigh al to its and must accordingly. consistently factors We have noted, accurately As the Court has [¶ 15] ability give deferred to the court’s interest was created weight have appropriate factors and Legislature as an “enforcement tool” to only found abuse where the court has provide motivation for the ordered in weighing made a “serious mistake” pay promptly. over monies to do so those Point-Pepperell, factors. See West question by delaying pay- There is no that Assessor, Inc. v. State Tax 1997 ME time, ment over the responsible party may ¶ (quoting 691 A.2d Coon v. in diminishing succeed the value of the (1st Grenier, Cir.1989) F.2d party’s Legislature successful award. The (citation omitted)). has, however, also authorized the trial court to waive the pres- No such serious mistake is ment interest in whole in in- ent here. The record before the trial stances where the nonprevailing party litiga- court chronicled a tale of extensive demonstrates for that cause waiver. litigation tion. The in this began matter 14 M.R.S.A. 1602-A. 1989. This is the fourth time that us, In the matter before the non- case has been before us. The Town’s de- prevailing party just did that. It peti- sire expense litigation to avoid further tioned the court for a waiver of post-judg- through a release was neither unreason- ment interest. In support petition, of that able nor unfounded. dispute There is no the Town asserted that it had offered did, fact, pay that the Town “complete satisfaction” plaintiff, government to the federal on the IRS lien plaintiff refused to accept that satisfac- did, fact, pay offer to to A.F.A.B. tion. The today Court has that concluded long the entire amount due so the trial court exceeded the parameters of as the A.F.A.B. a release acknowl- its discretion when it determined that the edging that the it had obtained complete satisfaction, Town’s offer of ac- years had la- been satisfied. Amost five companied by request sign *7 ter, petition A.F.A.B. filed a for reissuance release, good does not demonstrate of the writ of execution. As the court has cause. concluded, today the Town’s tender of the case, $14,844.47 On the unusual facts of this I to AF.A.B. would defer to the exercise of represented the sound a tender of the entire amount Thus, discretion of judge ques- the trial on the due to A.F.A.B. at that time. good tion of cause. We have made it clear legislative policy providing a disincen- in those instances delay when a court is tive for is not called into discretion, upon authorized to act its a play accept here. A.F.A.B. chose not to either way may decision be affirmed if the apparently amount tendered and chose correctly understood the facts and not to take further action for several facts, years. law relevant to the of that discre- exercise On these the court’s determi- Co., Inc., tion. Boit v. waiving Brookstone 641 nation that cause existed for (Me.1994). A court that is interest cannot be seen to called to exercise its discretion must exceed discretion.8 I the bounds Although deposited the Town could have Civ. P. there is no indication in this record court, pursuant with the to M.R. amount to that the Town’s offer of the full affirm the trial court’s decision not would interest.

to award willing immediately able anything Town was of 1995 to A.F.A.B. than a and that turn the monies over other faith offer