Ayer v. Hemingway, Hemingway Construction and Harris

Robinson, J.,

¶ 22. dissenting. I agree with the majority that a judgment may be renewed only by the filing of a new and independent suit. Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). See ante, ¶ 15. Had Hemingway objected to plaintiffs’ attempt in 2006 to secure a new amended judgment in the case initially resolved by the 2001 judgment, he likely would have prevailed. Likewise, had the trial court declined to enter the 2006 judgment, I would have voted to affirm an appeal of that determination. There is no basis in the Vermont Rules of Civil Procedure for amending a judgment five years after its issuance for the purpose of “updating” the judgment to account for accrued interest, payments made toward principal, or a modified payment plan, in the absence of an infirmity in the judgment itself. See V.R.C.P. 60; see also Nelson, 2008 VT 66, ¶¶ 8-9. The proper procedure is a separate and independent action *618to enforce the judgment; in the context of such a proceeding, plaintiffs are free to seek a new judgment reflecting the underlying judgment, amounts paid toward that judgment, and interest accrued. See 12 V.S.A. § 506. For all of these reasons, had Hemingway objected, or had the trial court balked, the 2006 order would not have stood.

¶ 23. But Hemingway did not object. He stipulated to the 2006 order. The trial court exercised its discretion to enter an amended judgment pursuant to the parties’ stipulation. That judgment is the judgment plaintiffs allegedly recorded in the Alburgh land records. That judgment is the judgment to which the judgment lien invoked by plaintiffs allegedly attaches.4 And that judgment is a final judgment that is not subject to collateral attack. See Johnston v. Wilkins, 2003 VT 56, ¶ 8, 175 Vt. 567, 830 A.2d 695 (mem.) (stipulated settlement incorporated into court’s final judgment disposing of matter has preclusive effect of final judgment). Moreover, the statute of limitations for enforcing or renewing that judgment, and for invoking the judgment lien, has not run. 12 V.S.A. §§ 506, 2903.

¶ 24. This is where I part ways with the majority. The majority essentially concludes that the 2006 order was not, for purposes of the statute of limitations, a judgment at all. Rather, the majority holds, the only relevant judgment was the 2001 judgment determining Hemingway’s initial debt to plaintiffs — even though the 2001 judgment is not the judgment on which plaintiffs have brought this action, and is not the judgment to which the judgment lien asserted by plaintiffs allegedly attached.

¶ 25. I cannot concur in the majority’s conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. I rely first and foremost on the common understanding of the term “judgment.” “Judgment” is not defined in the judgment lien statute, so we look to the definitions of the term found in Rule 54(a) and case law. Rule 54(a) defines judgment as “a decree and any order from which an appeal lies.” We have repeatedly cited and applied this rule in our decisions, noting that “[wjhether an order is appealable is left to case law.” Iannarone *619v. Limoggio, 2011 VT 91, ¶ 17, 190 Vt. 272, 30 A.3d 655. “The test of finality ‘is whether it makes a final disposition of the subject matter before the Court.’ ” Id. (quoting Morissette v. Morissette, 143 Vt. 52, 58, 463 A.2d 1384, 1388 (1983)); see also Bach v. Dawson, 268 P.3d 1189, 1191 (Idaho Ct. App. 2012) (“As a judgment must function by its character as a final determination of the parties’ rights in a lawsuit, whether a document is a court order or a ‘judgment’ has long been held to be determined not by the document’s title, but by its contents.”). Had the 2006 order resulted from a nonstipulated court order, either party clearly could have appealed.

¶ 26. Significantly, in other contexts, we have applied the common understanding of the meaning of a “judgment” to issues other than the appealability of a particular trial court order. See, e.g., Iannarone, 2011 VT 91, ¶ 17 (using Rule 54(a) definition of “judgment” in determining whether final judgment existed for purposes of claim preclusion); see also Bach, 268 P.3d at 1192 (“As these sections are akin to a statute of limitations of an enforceable judgment, what constitutes a ‘judgment’ should be based on a final, appealable (and hence, enforceable) order in the case.”).

¶ 27. The majority does not contest that for ordinary purposes the 2006 order was, in fact, a judgment, but essentially crafts a separate definition of “judgment” for the purposes of the statute of limitations. 12 V.S.A. § 2903. In so doing, the majority departs from our ordinary presumption that the Legislature intends terms in statutes to have their well-established legal meanings. See Morissette v. United States, 342 U.S. 246, 263 (1952) (stating that when legislature “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken”).

¶ 28. The fact is, the statute of limitations draws no distinction between “original” and “amended” judgments, and nothing in the language of the statute supports the notion that “judgment” has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903(a) (“A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based ...” (emphasis added)).

¶ 29. In light of the above considerations, the 2006 order was clearly a judgment. It made a final disposition of the issues before *620the trial court — plaintiffs’ claim to be paid pursuant to the 2001 judgment and defendant Hemingway’s response that plaintiffs had forged check amounts. The fact that the order was issued pursuant to stipulation rather than after a contested hearing does not mean that it was any less a final judgment. Johnston, 2003 VT 56, ¶ 8.

¶ 30. Moreover, the 2006 order did not merely rehash the substance of the 2001 judgment. It resolved a subsequent live dispute: how much did Hemingway owe plaintiffs pursuant to that 2001 judgment? The 2006 order established new terms: setting a new total judgment due, establishing terms of repayment that did not exist in the initial judgment, and identifying a rate of interest — 6% except if Hemingway defaulted — that differed from the 2001 judgment. The 2006 order cannot be characterized as “merely [a] continuation of an action, which create[s] nothing anew, but may be said to reanimate that which before had existence.” Corzo Trucking Corp. v. West, 61 So. 3d 1285, 1289 (Fla. Dist. Ct. App. 2011) (quotation and alterations omitted) (distinguishing between judgments in actions on judgment, which start limitations clock from scratch, and post-judgment proceedings, which do not); see also Koerber v. Middlesex Coll., 136 Vt. 4, 8, 383 A.2d 1054, 1057 (1978) (describing common law writ to revive judgment that “created nothing new, but rather was merely ‘the continuation of an action, — a step leading to the execution of a judgment already obtained, and enforcing the original demand for which the action was brought.’ ” (quoting 2 A. Freeman, Law of Judgments § 1091 (5th ed. 1925))). I see no reason to discount the order’s status as a judgment merely because the dispute that it resolved was itself predicated on a judgment.

¶ 31. In addition, the 2006 order amended and thereby superseded the 2001 judgment. Plaintiffs could not thereafter seek to enforce the terms of the 2001 judgment, and Hemingway could not thereafter defend that he had made payments in compliance with the 2001 judgment. The only judgment remaining to enforce is that reflected in the 2006 order. These impacts — extinguishment of prior claims and judgments and defenses thereto — are hallmarks of a judgment. See Restatement (Second) of Judgments § 17 (1982) (discussing doctrine of merger). By contrast, rulings that are not final judgments are generally subject to revision by the trial court prior to a final judgment. Morrisseau v. Fayette, 164 Vt. 358, 363, 670 A.2d 820, 823 (1995) (“[UJntil final decree the *621court always retains jurisdiction to modify or rescind a prior interlocutory order.” (quotation omitted)). Because the 2001 judgment was effectively supplanted by the 2006 order, if plaintiffs had thereafter expressly sought to renew or revive the 2001 judgment pursuant to 12 V.S.A. § 506, they could not have done so; that judgment was no longer effective. The judgment plaintiffs sought to enforce in this case, and the judgment to which their judgment lien allegedly relates, is the judgment embodied in the 2006 order.

¶ 32. The majority’s multiple definitions of “judgment” for different purposes also creates potential 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 when it is not? Is the Court’s holding limited to amended judgments that add interest and reflect an updated principal balance? What if an amended judgment issued pursuant to Rule 60(b) flips the obligor and obligee from the original judgment? Does the newly-minted creditor have eight years from the date of the original judgment — pursuant to which that party was required to pay the other — even if the amended judgment came years later? See Estate of Roxas v. Marcos, 214 P.3d 598, 606 (Haw. 2009) (“Holding that the first-in-time judgment controls the statute of limitations for [requests to extend] subsequent judgments would produce an absurd result when the first-in-time judgment does not address or resolve any of the claims ruled on 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 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 the majority’s. Ante, ¶ 19. The majority does not contend that the eight-year limitations period is a once-and-for-all limitation. The Legislature has established a mechanism for reviving a judgment and extending a judgment lien, thereby essentially starting the limitations clock anew. See 12 V.S.A. §§ 506, 2903(b). This process may, through successive renewals, keep a judgment and judgment lien alive and enforceable indefinitely. The majority’s concern is not with the fact of renewing judgments and the associated shift in the statute of limitations *622applicable in a given controversy; the majority’s concern is the procedure by which a party secures a renewed judgment.5

¶ 34. The real problem here is the 2006 order: it was not secured through the proper procedure. Although apparently not uncommon, the practice of issuing an amended judgment to reflect accrued interest and an updated principal balance is not sanctioned by any statute or rule. To the extent the majority implicitly so holds, we are on the same page. But insofar as that 2006 order became a final judgment, it was and is enforceable in its own right, an appropriate basis for a judgment lien, and subject to its own statute of limitations. For these reasons, I respectfully dissent.

As the majority notes, we cannot confirm based on this record that the 2006 order was, in fact, the order secured by a judgment lien. Had we reversed for the reasons set forth in this dissent, I would remand for a determination of whether plaintiffs effectively recorded the 2006 judgment so that they can foreclose on the lien.

Moreover, it is not clear why a “continually moving statute of limitations” would be contrary to any statutory objective. The purpose of the statutes limiting the enforcement of judgments and judgment liens is not to reward a recalcitrant judgment debtor by providing a windfall if the adjudicated debtor can just hold out long enough. “It is to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed.” Reed v. Rosenfield, 115 Vt. 76, 79, 51 A.2d 189, 191 (1947). Because the 2006 order effectively decided any issues concerning payment of the judgment that had arisen prior to that judgment, the only issues concerning satisfaction of the judgment that a court could be asked to address are those arising after the 2006 order — claims no older or more stale than the eight-year limitations statute contemplates.