*1
“lest there be a
very strictly,
standard
neglect
excusable
applied
sixty days”
time to
appeal-filing
of the
enlargement
de facto
87A, 17,
Killington, 2003 VT
In re Town
(quoting
(internal
not excusable
procedure
office
breakdown
Affirmed.
2013VT 37 Ayer Ayer Hemingway, III, Patrick and Terese v. Louis Individually and Frances Construction d/b/a
Harris, et al.
[73 673] A.3d No. 11-431 Reiber, Dooley, Burgess Robinson, JJ., Crawford, C.J., Present: J., Supr. Specially Assigned
Opinion May Filed *2 II, Swanton, Rose, E. George Spear, Albans, and Michael St. for Plaintiffs-Appellants. Albans, Hurlbut, Defendant-Appellee.
Timothy G. St. from Burgess, Ayer appeal Patrick and Terese 1. J. Plaintiffs to defendants summary judgment order granting the trial court’s III, in this foreclosure Hemingway, Harris and Louis Frances concluding the court erred Ayers argue case. The affirm. expired. lien had We their to collect longstanding attempts plaintiffs’ 2. This case involves Hemingway, individually from a debt defendant d/b/a a default Construction. Plaintiffs obtained Hemingway plus 2001 for costs of Hemingway February against $6830 (“the $179.66, accruing per year interest at 12% with not specify payment The 2001 order did judgment”). writ of subsequently nonpossessory Plaintiffs secured schedule. and estate. Hemingway’s nonexempt goods against attachment a motion for a possessory In November filed at a appear attachment. After failed to writ of motion, and with court made hearing approval, on the Rule of Civil Proce- by publication pursuant service Vermont motion, subsequently objected filing to the 4(g). Hemingway dure “I until stating, pay my payments an answer with the court did larger into ones.” Prior to the contested my forged checks were *3 issues, parties agreement on these the reached an and the hearing (the in stipulated January trial court issued a amended order order”). In that the court recounted that Hemingway “2006 order 8, that, September toward his debt and as of paid had $1150 2005, $11,400. “An he owed The court wrote: amended plaintiffs in granted against this matter is for the Plaintiffs the $11,400.” in amount of September Defendants as of stipulated payment plan, order included the with parties’ The 12%, that if accruing interest at 6% rather than but stated Hemingway payment plan, plaintiffs defaulted on the would be 12%, all entitled to interest at the rate of as well as remedies available to them under Vermont law.1 July plaintiffs Judgment 4. In recorded “Notice property in on “all real Alburgh Lien” Town Clerk’s Office $11,400. in in the amount of by [Hemingway] Alburgh” held parties’ stipulation, plaintiffs pursue 1 Apparently, did not in connection with the they initially sought. possessory writ of attachment had notice stated that perfected by recording the lien had been certified of a copy against Hemingway.2 obtained 5. In Frances brought Harris an unrelated action against Hemingway action, In damages. connection with that 25, 2010, on August Hemingway conveyed to in Harris two lots Alburgh Hemingway acquired time, in 2006. At the same that, the trial court a stipulated issued among order other things, awarded Harris in against Hemingway $11,400 amount of plus interest at 12% from September until the release of in the lien favor of plaintiffs, required Hemingway keep to current on payments to to pursuant payment agreement written signed by Hemingway and plaintiff Terese Ayer, provided if Hemingway defaulted on the lien, he costs, would be liable to for any Harris including fees, attorney’s to obtain a release of the lien.
¶ 6. The agreement signed by plaintiff Ayer Terese Hemingway on August providing Hemingway would pay Ayer thirty-nine debt, over months to settle his $7050 filed with the Harris-Hemingway In stipulation. agreement, this Hemingway stated that he would pay Ayer per month for $201.02 years 3.25 to pay $7050, outstanding agreed debt that a lien would remain on his in until property Alburgh the judgment was full, paid and acknowledged that if he defaulted on his payments, the interest rate would revert to 12% and be recalcu- $11,400 lated adjusted based amount of as reflected January 2006 order. 7. In May a complaint filed seeking to foreclose
on their judgment lien. alleged Plaintiffs that Hemingway de- agreement faulted on his and violated the 2006 order failing any payments make after January 2008. Based on the terms of payment agreement order, modification and the 2006 plaintiffs asserted that Hemingway owed them in principal $8597 in interest at per 12% annum. $3312 Plaintiffs cited the 2006 order as the controlling order and asked the court to renew or revive this order.
¶ 8. Plaintiffs named Harris as a defendant in this action because she had acquired the real property upon which sought foreclose from plaintiffs’ judgment after *4 filed, as noted above. 2 We cannot confirm based on this record which order was included the “stipulated order or the 2006 amended order.” com- plaintiffs’ filed an unverified answer to make offering and acknowledging plaintiffs his debt
plaint, Harris also agreement. to the 2010 payments pursuant immediate judgment, Plaintiffs moved for default filed an unverified answer. additional their defendants request, granting but the court denied affidavits. supported by that were verified or time to file answers order; later Hemingway did not. Harris responded Harris to this a cross-motion summary judgment, plaintiffs and filed moved for summary for default. judgment and trial court Harris’s motion January granted 10. In below, As in additional detail summary judgment. for discussed longer found that lien was no plaintiffs’ the court than from the eight years elapsed effective because more it was original issuance of the final on which based. See 2903(a). conclusion, rejected reaching § In its the court V.S.A. assertion that the 2001 had been renewed or plaintiffs’ As the court stipulated revived the 2006 amended order. required filing independent revival of a new and explained, action on the see which had not occurred here. rejected plaintiffs’ 11. The court also contention judgment”
2006 order was a new “final from which a new to run. court found that the 2001 eight-year period began litigation disposed order had ended the of the matter merely court while set forth a agreement before the carry schedule to into effect. For this and payment reasons, plaintiffs’ the court concluded lien could not and it thus Harris’s upon, granted request be foreclosed summary judgment. appeal This followed. timely. 12. Plaintiffs maintain that their foreclosure action is
They judgment by filing first assert renewed Although the functional of a new equivalent complaint. plead- ing captioned that led to the 2006 order was as a “Motion for Possessory Writ of Attachment” and utilized the same docket action, original number as the filed summons to the Hemingway pursuant provisions served the motion on upon Rule for service initiation of a new action. For that 4(g) reason, argue possessory that their motion for writ an provided Hemingway opportunity attachment with notice and heard, it a “new and independent to be should be considered Alternatively, plaintiffs argue that the 2006 order should action.” judgment. be considered a new final *5 ¶ 13. a grant summary We review of judgment using the same Jackson, standard as the trial court. Richart v. 94, 97, 171 Vt. (2000). 319, A.2d Summary “when, judgment appropriate is all taking allegations by true, made the nonmoving party as there are no genuine issues of material fact and the movant is entitled Id.-, 56(a). to judgment as matter of law.” Summary V.R.C.P. judgment was properly granted to defendants here.
¶ 14. As trial the court recognized, judgment lien is effective only eight years “for from the issuance of a final 2903(a). judgment § which it is based.” 12 V.S.A. The default judgment against Hemingway 2, 2001, was entered on February and plaintiffs did not 10, file their foreclosure complaint May until Thus, outside the eight-year period. the judgment lien was no longer effect when complaint was filed and were not entitled to foreclose on judgment lien.
¶ 15. While the law allows for the renewal of judgments
within
eight-year
statutory period,
§
see 12 V.S.A.
such
judgments can be renewed only by the filing of a “new and
independent suit commenced in accordance with Rule 3.” Nelson v.
¶
Russo,
66, 6,
(mem.).
2008 VT
¶ 16. As plaintiffs acknowledge, they did not file a new complaint Instead, on the judgment. they filed a motion for a possessory writ of attachment and eventually entered into a stipulated agreement with Hemingway regarding payment his of the 2001 debt. While Hemingway may have had notice and an to opportunity respond motion, to plaintiffs’ that does not trans form their motion into a complaint. Russo plainly requires a new and independent suit initiated the filing of a complaint, not the filing something arguably is akin a complaint. Any conclusion would reintroduce uncertainty into the judgment re process. newal We thus hold that was not properly renewed.
¶ 17. Plaintiffs next assert that the 2006 order constitutes a new 2903(a). “final judgment” of 12 purposes According plaintiffs, the 2006 order not only reaffirmed the monetary order, any potential it also settled in the 2001 but had made and payments what regarding
disputes an agree- not reached parties owed. Had what interest was continue, have been allowed to ment, Hemingway would from the 2006 order. appeal “final arguments unpersuasive. 18. We find these of limitations of the statute running triggered
judgment”
that ended the
order. It was this order
the 2001 default
finally disposed
parties
between
litigation
Youngbluth,
VT
Youngbluth
the court. See
matter before
(final
is one whose effect
¶21. 80.1(c) It is true that Rule states that when a defendant fails to file “a or verified answer answer supported by affidavits, disclosing facts alleged constitute a defense to claim,” default, then clerk shall “[t]he enter a 55(a).” However, accordance with Rule Rule 55 “commits by default to the trial court’s discretion.” DaimlerChrysler Servs. Am., Ouimette, N. 47, 6, LLC v. 2003 VT Ouimette, In 38. we held the trial court had discretion to sponte conclude sua the statute of limitations barred a plaintiffs request for a default judgment. We reach a similar conclusion here. The court had discretion to refuse to enter a default judgment against Hemingway given its conclusion that plaintiffs’ judgment lien had expired.
Affirmed. Robinson, J., I dissenting. agree with the majority judgment may be renewed by filing of a new and Russo, independent suit. Nelson v. (mem.). ante,
of that determination. There is no basis in the Vermont Rules of Civil Procedure for amending judgment years five after its issuance for the of purpose “updating” the judgment to account interest, for accrued payments made toward principal, or a modified payment plan, in the absence of an in infirmity the 60; judgment Nelson, itself. See V.R.C.P. see also 2008 VT ¶¶ 8-9. The proper procedure is a separate independent action (1933) (“A promise 166 A. right new will revive the [contract] run.”); action whether made before or after the [of statute has limitations] (“The by §2902 chapter V.S.A. lien created this shall in be addition to and separate contract”). any remedy by from or interest created law or in of such a judgment; proceeding,
to enforce the the context a new the under- judgment reflecting are free seek that and interest paid judgment, amounts toward lying judgment, reasons, For all of accrued. See V.S.A. 506. these balked, Hemingway objected, or had the trial court the 2006 order would not have stood. object. stipulated 23. But did not He to the 2006
order. The trial court exercised its discretion to enter an amended
to the
That
judgment pursuant
parties’ stipulation.
judgment
is
in
land
judgment plaintiffs allegedly
Alburgh
the
recorded
the
judgment
judgment
judgment
records. That
is the
to which the
by plaintiffs allegedly
judgment
lien invoked
attaches.4 And that
is
that
is not
attack.
judgment
collateral
See
Wilkins,
Johnston
619 ¶91, 17, 2011 Limoggio, VT 655. A.3d “The test of it finality ‘is whether makes a final disposition of the ” Morissette, matter before the Court.’ Id. (quoting Morissette v. (1983)); see also Bach v. Dawson, (Idaho 2012) (“As 268 P.3d App. Ct. judgment must function by its character as a final determination lawsuit, of parties’ rights in a whether a document is a court order or a ‘judgment’ has long been held to be determined not by title, contents.”). the document’s but its Had the 2006 order order, resulted from a nonstipulated court party clearly either could appealed. have contexts, 26. in Significantly, we have applied the
common understanding of the meaning
“judgment”
of a
to issues
other than the appealability
See,
of a
trial
particular
court order.
Iannarone,
54(a)
e.g.,
17 (using Rule
definition of
“judgment” in determining whether
final judgment existed for
purposes
(“As
of claim preclusion);
Bach,
see also
between “original” and “amended” judgments, and nothing language of the supports statute the notion that “judgment” has a different meaning for the purposes of the statute of limitations 2903(a) (“A than for other purposes. See 12 judgment shall be eight years effective for from the issuance of a final added)). on which it is based ...” (emphasis In light considerations, the above the 2006 order was clearly It judgment. made a final disposition of the issues before to the 2001 paid pursuant claim be plaintiffs’
the trial court response Hemingway’s judgment and defendant issued the order was The fact check amounts. forged hearing does rather than after contested to stipulation pursuant Johnston, 2003 VT judgment. any that it was less not mean ¶56, 8. *9 rehash the Moreover, merely did not the 2006 order live subsequent It resolved a judgment. the 2001
substance of that pursuant owe to Hemingway much did dispute: how setting a 2006 order established new terms: 2001 The judgment? due, that did establishing repayment terms judgment new total identifying and a rate of interest judgment, in the initial not exist — — that from the if defaulted differed except Hemingway 6% characterized as The 2006 order cannot be judgment. 2001 action, nothing an which “merely create[s] continuation of [a] anew, to reanimate that which before may but be said West, 1285, v. 61 So. 3d 1289 Trucking Corp. existence.” Corzo omitted) 2011) (Fla. alterations App. (quotation Dist. Ct. which judgments judgment, between actions (distinguishing scratch, and post-judgment proceed- limitations clock from start Coll., 4, not); v. Middlesex which do see also Koerber ings, (1978) (describing 1057 common law writ to 383 A.2d new, nothing merely that “created but rather was judgment revive — action, step leading continuation of an to the execution ‘the obtained, original de- judgment already enforcing of a ” Freeman, 2 A. brought.’ (quoting action was mand for which the (5th 1925))). § I no reason to Law of 1091 ed. see Judgments judgment merely order’s status as a because the discount the judgment. that it itself on a dispute predicated resolved was addition, thereby super- 31. In the 2006 order amended and to judgment. Plaintiffs could not thereafter seek seded could enforce the terms of the 2001 in compliance that had made payments not thereafter defend he judgment remaining to enforce judgment. with the 2001 — extinguish- in the 2006 order. These impacts is reflected — are judgments claims and and defenses thereto prior ment (Second) of Judgments hallmarks of a See Restatement judgment. (1982) contrast, rulings (discussing merger). By § doctrine of final are to revision judgments generally that are not Fayette, judgment. the trial court to Morrisseau prior (1995) (“[UJntil final decree the court always jurisdiction retains modify or prior rescind a omitted)). interlocutory (quotation order.” Because the judg- ment was effectively supplanted order, by the 2006 if plaintiffs had thereafter expressly sought to or renew revive the 2001 judgment pursuant so; could not have done judgment was no longer effective. The plaintiffs sought case, to enforce in this and the judgment to which their judgment relates, allegedly is the embodied the 2006 order. ¶ 32. The majority’s multiple definitions of “judgment” for different purposes also potential creates practical problems. Rather than promoting clarity, the majority’s approach injects uncertainty into the business of enforcing judgments. How is one to know when a court judgment that amends a prior judgment is a real judgment for statute of limitations purposes, and it when is not? Is the Court’s holding limited to amended judgments that add interest and reflect an updated principal balance? What if an 60(b) amended pursuant issued to Rule flips the obligor and obligee from the original judgment? Does the newly-minted creditor have eight years from the date of original — pursuant to which party required to pay the other even if the amended judgment came years later? See Estate of Marcos, (Haw. 2009) Roxas v. 214 P.3d (“Holding *10 first-in-time judgment controls the statute of limitations for [re- quests subsequent extend] judgments would produce an absurd result when the first-in-time judgment does not address or resolve any of the claims ruled by the subsequent judgment.”). One can even imagine the odd situation in which post-trial relief to amend a judgment might be available pursuant to Y.R.C.R n —(cid:127) 60(b)(6), for example but a party would then be foreclosed from actually enforcing the amended judgment.
¶ 33. My approach no more invites a “continually moving statute of limitations” than Ante, the majority’s. 19. The majority does not contend that the eight-year period limitations is a once-and- for-all limitation. The Legislature has established a mechanism for reviving a judgment and extending lien, a judgment thereby essentially starting the limitations clock anew. See 506, 2903(b). §§ This process may, through renewals, successive a keep judgment and judgment lien alive and enforceable indefi- nitely. The majority’s concern is not with the fact of renewing judgments and the associated shift in the statute of limitations the majority’s concern is controversy; in a given
applicable judgment.5 a secures a renewed party which procedure it was not the 2006 order: real here is problem 34. The not Although apparently proper procedure. through secured to reflect uncommon, an amended practice issuing not sanc- balance is updated principal interest and an accrued majority implicitly or rule. To the extent by any tioned statute But as that 2006 order holds, the same insofar page. so we are on own it and is enforceable its became lien, to its an basis for right, appropriate reasons, I respectfully limitations. For these own statute of dissent.
Opinion Filed Reargument Denied June Motion 5Moreover, why “continually moving it not statute of limitations” would is clear any statutory objective. purpose limiting contrary be statutes judgments enforcement of liens is not to reward recalcitrant adjudicated just by providing a windfall if the debtor can hold out debtor necessary bringing long enough. of an action “It is to make within brought prevent being fraudulent and stale claims from reasonable time and thus documentary disappeared at a time witnesses have died or evidence has when (1947). destroyed.” Rosenfield, lost or Reed v. been *11 any effectively concerning payment decided issues of the Because the order prior concerning issues that had arisen those of the that a court could be asked to address are satisfaction eight-year arising or more stale than the after the 2006 order claims no older contemplates. limitations statute