Nelson v. Russo

• Decision Date: 14 May 2008
• Docket Number: No. 07-406.,07-406.
• Citation: 956 A.2d 1117,2008 VT 66
• Parties: Carroll NELSON v. Ronald RUSSO.
• Court: Vermont Supreme Court

956 A.2d 1117

2008 VT 66

Carroll NELSON v. Ronald RUSSO.

No. 07-406.

Supreme Court of Vermont.

May 14, 2008.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

ENTRY ORDER

¶ 1. Defendant Ronald Russo appeals from the denial of his motion for relief from judgment. He asserts that the superior court erred when it upheld a ruling that allowed plaintiff Carroll Nelson to renew his aging judgment by motion instead of requiring a separate action on the judgment in accordance with 12 V.S.A. § 506. We reverse and remand.

¶ 2. The underlying facts are as follows. On February 11, 1998, the Washington Superior Court entered a default money judgment against defendant and in favor of plaintiff.¹ When defendant thereafter failed to comply with the judgment, plaintiff filed a motion to renew the judgment, accompanied by affidavit, on June 29, 2004. The motion recognized the eight-year statute of limitations on judgments and the requirement that existing judgments must be renewed, if unsatisfied, prior to the running of the statute. Plaintiff did not provide notice of the post-judgment motion to defendant, who at the time was residing in Florida. The superior court granted plaintiff's motion to renew on August 19, 2004, and did not note that any response had been filed by defendant.²

¶ 3. Subsequently, on June 26, 2007, defendant filed a motion for relief from judgment in superior court. In his motion, defendant argued three bases for relief under Vermont Rule of Civil Procedure 60(b). First, pursuant to Rule 60(b)(4), he asserted that plaintiff failed to properly renew the underlying judgment in accordance with 12 V.S.A. § 506, and that therefore the renewed judgment was void. Second, pursuant to Rule 60(b)(5), he asserted that the judgment was no longer equitable because it was more than eight years old and had not been properly renewed during the limitations period. Finally, pursuant to Rule 60(b)(6), he requested that the court exercise its discretion to spare him the hardship of defending an expired Vermont judgment in his home state of Florida. While noting the "fairly clear" precedent in Koerber v. Middlesex College, 136 Vt. 4, 9, 383 A.2d 1054, 1057 (1978)—that 12 V.S.A. § 506 requires an action to create a new limitations period—the superior court denied the motion for relief. The superior court reasoned that because Rules 69 and 81 arguably allow renewal of a judgment by motion, the renewed judgment was not void as a matter of law. Furthermore, the court held that the strict application of Koerber would create hardship for plaintiff as the original judgment had since expired. This appeal followed.

¶ 4. On appeal, defendant claims that the superior court committed reversible error by ignoring the statutory mandate in 12 V.S.A. § 506 that requires the filing of an independent action to renew a judgment and by finding that Rules 69 and 81 provide a sufficient basis for allowing renewal of judgments by motion. In addition, defendant contends that the issue of whether the eight-year statute of limitations period is tolled is not before the Court on this appeal.

¶ 5. The determination of whether the appropriate procedural method was employed to renew an unsatisfied judgment is legal in nature and, therefore, our review is de novo. Progressive Casualty Ins. Co. v. Estate of Keenan, 2007 VT 86, ¶ 6, 182 Vt. 298, 937 A.2d 630. As discussed below, we agree with defendant that 12 V.S.A. § 506 provides the appropriate procedure in this instance.

¶ 6. Defendant's primary argument on appeal is that 12 V.S.A. § 506 requires a party to file an independent action to renew a judgment. The statute states, in its entirety, that "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought within eight years after the rendition of the judgment, and not after." 12 V.S.A. § 506. We agree with defendant that the statute intended an action to be a new and independent suit commenced in accordance with Rule 3. See V.R.C.P. 3 (providing the requirements for commencing a civil action); see also Koerber, 136 Vt. at 9, 383 A.2d at 1057 (holding that an action on a judgment is a new and independent action). The statute's language, however, does not answer the precise question on appeal of whether filing an independent action is the only way to renew an unsatisfied judgment. Instead, it simply requires that an action to renew or revive a judgment occur within the statute of limitations period. See In re D'Antonio, 2007 VT 100, ¶ 7, 182 Vt. ___, 939 A.2d 493 (mem.) ("In interpreting a statute, the Court initially looks to the plain meaning of the language used by the Legislature.").

¶ 7. Prior decisions have recognized the use of an action, in accordance with 12 V.S.A. § 506, as an allowable method for renewing a judgment. In Koerber, we noted that a "judgment creditor can start the limitation period anew by bringing an action upon the judgment" within the limitations period. 136 Vt. at 9, 383 A.2d at 1057. Similarly, the court in Okemo Mountain, Inc. v. Sikorski recognized the plaintiff's timely renewal of an unsatisfied judgment by action in accordance with 12 V.S.A. § 506. No. 1:93-CV-22, 2006 WL 335858, at *1 n. 1 (D.Vt. Feb.14, 2006) (Ruling on Pending Motions) ("As a general rule, such statutory provisions are construed to contemplate completion of the first step—here, bringing the action."). A dissenting judge of the Second Circuit, in an earlier decision dealing with identical facts, also acknowledged the plaintiff's use of an action to renew its judgment. Okemo Mountain, Inc. v. U.S. Sporting Clays Ass'n, 376 F.3d 102, 106 (2d Cir. 2004) (Jacobs, J., dissenting) ("Having failed to collect on its judgment from 1995 to 2003, Okemo brought the underlying suit to renew pursuant to § 506.") While neither the plain language of the statute nor these references make the use of an action mandatory as defendant contends, they do indicate the permissible use of this procedure for renewing a judgment in Vermont.

¶ 8. Contrary to defendant's argument that an action is required to renew a judgment, plaintiff claims that Rules 69 and 81 provide a sufficient basis to extend a judgment by motion. Plaintiff's claim is unfounded. Rule 69 states in part:

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. . . .

. . . Actions or motions to renew or revive judgments shall not be a prerequisite to issuance of a writ of execution as long as the eight-year [statute of limitations] period has not expired.

V.R.C.P. 69. Plaintiff asserts that this language clearly and affirmatively allows for judgments to be renewed by either an action or a motion. We disagree with plaintiff's assertion. When construing and administering rules of civil procedure, we must do so liberally, in a way that "`secure[s] the just, speedy, and inexpensive determination of every action.'" Price v. Leland, 149 Vt. 518, 520, 546 A.2d 793, 795 (1988) (quoting V.R.C.P. 1); see also Reporter's Notes, V.R.C.P. 1 (recognizing the final sentence of V.R.C.P. 1 to establish a canon of liberal construction). The purpose of Rule 69 on its face, however, is to establish writs of execution as a means of enforcing a money judgment. See V.R.C.P. 69. The portion of the rule that plaintiff relies upon is included simply to clarify that judgments do not have to be renewed or revived to be enforced by execution as long as the statute of limitations has not expired. Reporter's Notes, 1982 Amendment, V.R.C.P. 69; see also Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991) (noting that the rules of civil procedure must be given their "plain meaning"). It is not included for the purpose of establishing the procedure by which to renew a judgment. The allusion to renewal by action or motion, therefore, cannot be construed to prescribe the proper procedure for renewing a judgment as plaintiff claims. To hold otherwise would extend the purpose of the rule beyond its plain language.

¶ 9. Plaintiff's argument with respect to Rule 81—that three separate provisions in the rule affirm the practice of renewing a judgment by motion—is similarly unconvincing. First, plaintiff cites to Rule 81(b), which abolishes the writ of scire facias and certain other writs and provides that "[a]ny other relief heretofore available by any of such writs may be obtained by appropriate action or motion under the practice prescribed by these rules." V.R.C.P. 81(b). This provision, however, fails to support the practice utilized by plaintiff in this case because the rules do not prescribe a practice for renewing judgments beyond the mere allusion in Rule 69 discussed above. Next, plaintiff relies on Rule 81(c), which requires that when statutory language is inconsistent with the rules, the conflicting terminology "shall be taken to mean the device or procedure proper under these rules." V.R.C.P. 81(c). Again, plaintiff's reliance is misplaced due to the absence of a proper procedure in the rules. Finally, plaintiff turns to Rule 81(d), which provides that, in the absence of a specific procedure, a "court shall proceed in any lawful manner not inconsistent with the Constitution of the State of Vermont, these rules, or any applicable statutes." V.R.C.P. 81(d). As discussed above, because we conclude that 12 V.S.A. § 506 sets the permissible procedure in this instance and requires a separate action to renew a judgment, plaintiff's use of a motion is an inconsistent practice and cannot be upheld under Rule 81(d). Based on the plain language and requirements set forth in Rules 69 and 81, we hold that the rules do not provide a proper basis...