Ayer v. Hemingway

• Decision Date: 24 May 2013
• Docket Number: No. 11–431.,11–431.
• Citation: 73 A.3d 673,2013 VT 37
• Parties: Patrick AYER and Terese Ayer v. Louis HEMINGWAY, III, Individually and d/b/a Hemingway Construction and Frances Harris, et al.
• Court: Vermont Supreme Court

73 A.3d 673
2013 VT 37

Patrick AYER and Terese Ayer
v.
Louis HEMINGWAY, III, Individually and d/b/a Hemingway Construction and Frances Harris, et al.

No. 11–431.

Supreme Court of Vermont.

May 24, 2013.

George E. Spear, II, Swanton, and Michael Rose, St. Albans, for Plaintiffs–Appellants.

Timothy G. Hurlbut, St. Albans, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, BURGESS and ROBINSON, JJ., and CRAWFORD, Supr. J., Specially Assigned.

BURGESS, J.

¶ 1. Plaintiffs Patrick and Terese Ayer appeal from the trial court's order granting summary judgment to defendants Frances Harris and Louis Hemingway, III, in this foreclosure case. The Ayers argue that the court erred in concluding that their judgment lien had expired. We affirm.

¶ 2. This case involves plaintiffs' longstanding attempts to collect a debt from defendant Hemingway, individually and

[73 A.3d 674]

d/b/a Hemingway Construction. Plaintiffs obtained a default judgment against Hemingway in February 2001 for $6830 plus costs of $179.66, with interest accruing at 12% per year (“the 2001 judgment”). The 2001 judgment order did not specify a payment schedule. Plaintiffs subsequently secured a nonpossessory writ of attachment against Hemingway's nonexempt goods and estate.

¶ 3. In November 2004, plaintiffs filed a motion for a possessory writ of attachment. After Hemingway failed to appear at a hearing on the motion, and with court approval, plaintiffs made service by publication pursuant to Vermont Rule of Civil Procedure 4(g). Hemingway subsequently objected to the motion, filing an answer with the court stating, “I did pay my payments until my checks were forged into larger ones.” Prior to the contested hearing on these issues, the parties reached an agreement and the trial court issued a stipulated amended order in January 2006 (the “2006 order”). In that order the court recounted that Hemingway had paid only $1150 toward his debt and that, as of September 8, 2005, he owed plaintiffs $11,400. The court wrote: “An amended judgment in this matter is granted for the Plaintiffs against the Defendants as of September 8, 2005 in the amount of $11,400.” The order included the parties' stipulated payment plan, with interest accruing at 6% rather than 12%, but stated that if Hemingway defaulted on the payment plan, plaintiffs would be entitled to interest at the rate of 12%, as well as all remedies available to them under Vermont law.¹

¶ 4. In July 2008, plaintiffs recorded a “Notice of Judgment Lien” in the Alburgh Town Clerk's Office on “all real property held by [Hemingway] in Alburgh” in the amount of $11,400. The notice stated that the lien had been perfected by recording a certified copy of a judgment obtained against Hemingway.²

¶ 5. In 2010, Frances Harris brought an unrelated action against Hemingway for damages. In connection with that action, on August 25, 2010, Hemingway conveyed to Harris two lots in Alburgh that Hemingway had acquired in 2006. At the same time, the trial court issued a stipulated judgment order that, among other things, awarded Harris judgment against Hemingway in the amount of $11,400 plus interest at 12% from September 8, 2005 until the release of the lien in favor of plaintiffs, required Hemingway to keep current on payments to plaintiffs pursuant to a written payment agreement signed by Hemingway and plaintiff Terese Ayer, and provided that if Hemingway defaulted on the lien, he would be liable to Harris for any costs, including attorney's fees, to obtain a release of the lien.

¶ 6. The agreement signed by plaintiff Terese Ayer and Hemingway on August 23, 2010, providing that Hemingway would pay Ayer $7050 over thirty-nine months to settle his debt, was filed with the Harris–Hemingway stipulation. In this agreement, Hemingway stated that he would pay Ayer $201.02 per month for 3.25 years to pay the outstanding debt of $7050, agreed that a lien would remain on his property in Alburgh until the judgment was paid in full, and acknowledged that if he defaulted on his payments, the interest rate would revert to 12% and be recalculated based on the adjusted amount of

[73 A.3d 675]

$11,400 as reflected in the January 2006 order.

¶ 7. In May 2011, plaintiffs filed a complaint seeking to foreclose on their judgment lien. Plaintiffs alleged that Hemingway defaulted on his agreement and violated the 2006 order by failing to make any payments after January 2008. Based on the terms of the 2010 payment modification agreement and the 2006 order, plaintiffs asserted that Hemingway owed them $8597 in principal and $3312 in interest at 12% per annum. 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 they sought to foreclose from Hemingway after plaintiffs' judgment lien was filed, as noted above.

¶ 9. Hemingway filed an unverified answer to plaintiffs' complaint, acknowledging his debt to plaintiffs and offering to make immediate payments pursuant to the 2010 agreement. Harris also filed an unverified answer. Plaintiffs moved for a default judgment, but the court denied their request, granting defendants additional time to file answers that were verified or supported by affidavits. Harris responded to this order; Hemingway did not. Harris later moved for summary judgment, and plaintiffs filed a cross-motion for summary judgment and default.

¶ 10. In January 2011, the trial court granted Harris's motion for summary judgment. As discussed in additional detail below, the court found that plaintiffs' judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based. See 12 V.S.A. § 2903(a). In reaching its conclusion, the court rejected plaintiffs' assertion that the 2001 judgment had been renewed or revived by the 2006 stipulated amended order. As the court explained, revival required the filing of a new and independent action on the judgment, see 12 V.S.A. § 506, which had not occurred here.

¶ 11. The court also rejected the plaintiffs' contention that the 2006 order was a new “final judgment” from which a new eight-year period began to run. The court found that the 2001 order had ended the litigation and disposed of the subject matter before the court while the 2006 agreement merely set forth a payment schedule to carry that judgment into effect. For this and other reasons, the court concluded that the plaintiffs' lien could not be foreclosed upon, and it thus granted Harris's request for summary judgment. This appeal followed.

¶ 12. Plaintiffs maintain that their foreclosure action is timely. They first assert that they renewed the 2001 judgment by filing the functional equivalent of a new complaint. Although the pleading that led to the 2006 order was captioned as a “Motion for a Possessory Writ of Attachment” and utilized the same docket number as the original action, plaintiffs filed a summons and served the motion on Hemingway pursuant to the provisions of Rule 4(g) for service upon initiation of a new action. For that reason, plaintiffs argue that their motion for a possessory writ of attachment provided Hemingway with notice and an opportunity to be heard, and it should be considered a “new and independent action.” Alternatively, plaintiffs argue that the 2006 order should be considered a new final judgment.

¶ 13. We review a grant of summary judgment using the same standard as the trial court. Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000). Summary judgment is appropriate “when, taking

[73 A.3d 676]

all allegations made by the nonmoving party as true, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id.;V.R.C.P. 56(a). Summary judgment was properly granted to defendants here.

¶ 14. As the trial court recognized, a judgment lien is effective only “for eight years from the issuance of a final judgment on which it is based.” 12 V.S.A. § 2903(a). The default judgment against Hemingway was entered on February 2, 2001, and plaintiffs did not file their foreclosure complaint until May 10, 2011, outside the eight-year period. Thus, the judgment lien was no longer in effect when the complaint was filed and plaintiffs were not entitled to foreclose on the judgment lien.

¶ 15. While the law allows for the renewal of judgments within the eight-year statutory period, see 12 V.S.A. § 506, such judgments can be renewed only by the filing of a “new and independent suit commenced in accordance with Rule 3.” Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). They cannot be renewed by motion. Id. Our decision in Russo was designed to clarify the law in this area given the absence of a specific statute addressing the process for renewing judgments and a confusing reference to renewal by motion in the civil rules. Id. ¶ 12.

¶ 16. As plaintiffs acknowledge, they did not file a new complaint on the judgment. Instead, they filed a motion for a possessory writ of attachment and eventually entered into a stipulated agreement with Hemingway regarding his payment of the 2001 debt. While Hemingway may have had notice and an opportunity to respond to plaintiffs' motion, that does not transform their motion into a complaint. Russo plainly requires a new and independent suit initiated by the filing of a complaint, not the filing of something that is arguably akin to a complaint. Any other conclusion would reintroduce uncertainty into the judgment renewal process. We thus hold that the 2001 judgment was not properly renewed.

¶ 17. Plaintiffs next assert that the 2006 order constitutes a new “final judgment” for purposes of 12 V.S.A. § 2903(a). According to plaintiffs, the 2006 order not only reaffirmed the monetary judgment in the 2001 order, but it also settled any potential disputes regarding what payments Hemingway had...