Lanoue v. Rutland Renovations

¶ 1. Roger Lanoue appeals from a Grand Isle Superior Court judgment ordering that bail monies Lanoue remitted to the Grand Isle Small Claims Court be released to Rutland Renovations in satisfaction of a small claims judgment. Because Lanoue’s appeal to this Court is untimely, we dismiss it.

¶ 2. The relevant facts are as follows. In July 2003, Lanoue filed suit against Rutland Renovations in small claims court. Shortly thereafter, Rutland Renovations filed a counterclaim. In January 2004, the small claims court entered judgment for Rutland Renovations in the amount of $3,025 ($3,000 in damages and $25 in costs) due to Lanoue’s failure to appear at trial. Lanoue’s subsequent appeal to the superior court was dismissed due to his failure to appear at trial or to *568state a reason for appeal. That dismissal ended litigation on the merits. By August 2005, Lanoue still had not satisfied the judgment despite a financial disclosure hearing in the small claims court and a subsequent March 2005 ruling that he had the ability to pay the judgment. On August 24, 2005, the small claims court held Lanoue in contempt of court and ordered him to pay the judgment immediately, which now totaled $3,599.75 including interest and costs. The small claims court ruled that if the judgment remained unpaid on August 26, the court would issue an arrest warrant and set bail at $1,500. Lanoue failed to pay, and on August 26, he was arrested and posted $1,500 in cash bail.

¶ 3. At a September 1 hearing on purge of contempt, the small claims court held that Lanoue continued to be in contempt of the January 2004 judgment order, authorized disbursement of the $1,500 bail to Rutland Renovations to be applied against the outstanding judgment, and ordered Lanoue to pay the balance of the judgment immediately. The court ruled that Lanoue’s failure to pay the outstanding balance of $2,099.75 by September 10 would result in a second arrest warrant being issued with bail set at $2,099.75. Lanoue again failed to pay. On September 12, Lanoue was arrested and posted $2,099.75 in cash bail.

¶ 4. On September 13, the small claims court received a letter from Rutland Renovations requesting the release of all $3,599.75 in bail funds to it in satisfaction of the judgment. On that day, Lanoue also filed a motion to withhold the funds. On October 5, the small claims court denied Lanoue’s motion, and, treating Rutland Renovation’s letter as a motion, granted its request to release the bail funds. Lanoue timely appealed the small claims court’s October 5 rulings to the superior court.

¶ 5. On April 28, 2006, a hearing was held in superior court. On May 13, the superior court entered judgment for Rutland Renovations, ordering that $1,500 be released to it immediately due to Lanoue’s failure to timely appeal the September 1, 2005 order, and that $2,099.75 be released to Rutland Renovations “when the case is final.” In material part, the judgment order read as follows:

The $1,500.00 bail fund shall be disbursed forthwith to defendant Rutland Renovations in accord with the September 1, 2005 order which was not appealed. The balance of the fund which was purge payment shall be paid to Rutland Renovations when the case is final. The orders and rulings of the court are affirmed. The findings of this court on the record of April 28, 2006 are incorporated herein.1

*569At an August 18 show-cause hearing, the court ordered the immediate release of the $2,099.75 to Rutland Renovations pursuant to the May 13 judgment. The court ordered Lanoue to pay the balance of the outstanding judgment (consisting of additional interest and costs), subject to confirmation by the parties of the amount owed, at the rate of $50 per month. The $2,099.75 was immediately released to Rutland Renovations. By August 23, the parties had agreed that the additional interest and costs totaled $383.12. On August 25, the superior court ordered Lanoue to pay the additional $383.12 to Rutland Renovations in monthly installments of $50. Lanoue filed a motion in the superior court for permission to appeal to this Court on August 29. We subsequently granted Lanoue permission to appeal.* 2

¶ 6. Lanoue makes three arguments on appeal. First, Lanoue argues that the superior court lacked jurisdiction to hear his appeal. Lanoue also argues that his wife should have been given notice and an opportunity to defend her interest in the bail monies before they were released to Rutland Renovations. Finally, Lanoue argues that it was improper for the small claims and superior courts to disburse bail monies in satisfaction of the small claims judgment.

¶ 7. We do not reach any of Lanoue’s arguments because his motion for permission to appeal was untimely. Appeals of superior court judgments in small claims actions are governed by 12 V.S.A. § 5538 and Vermont Rule of Appellate Procedure 6(b). Under those provisions, requests for permission to appeal such judgments must be filed with the superior court “within 10 days of the date of the entry of the judgment or order to be appealed from” with exceptions not relevant to this case. V.R.A.P. 6(b). The superior court entered judgment for Rutland Renovations on May 13, 2006. That order ended litigation on the merits of the contempt charge and conclusively determined the rights of the parties, leaving nothing for the court to do but execute the judgment, see Putnam v. Putnam, 166 Vt. 108, 113 n.1, 689 A.2d 446, 448 n.1 (1996) (setting out rule that such orders are final and appealable), which it did by ordering the immediate release of the $2,099.75 to Rutland Renovations and by ordering Lanoue to pay Rutland Renovations $383.12 in interest and costs. Lanoue did not file a motion for permission to appeal until August 29,2006, more than three months after the May 13 judg*570ment order, and as such waived his right to request permission to appeal. See Dowlings, Inc. v. Mayo, 137 Vt. 548, 550, 409 A.2d 588, 590 (1979) (holding that failure to timely file an appeal constitutes a waiver of appeal rights). Therefore, we must dismiss the appeal. Cf. Bowles v. Russell, 551 U.S. 205, 209, 127 S. Ct. 2360, 2363 (2007) (“[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional.” (quotation omitted)).

Dismissed.

We disagree with the dissent that the May 13 judgment order was not a final, appealable order. We read the phrase “when the case is final” as a directive not to release the $2,099.75 until the appeal period had run — or until a favorable decision on appeal had been entered — not as an indication that the order was not meant to be final. This reading is consistent with the sentence preceding it, which orders the immediate release of the $1,500 pursuant to the small claims judgment of September 1,2005 that was never appealed. When added to the court’s apparent confusion as to why the case was still open as of the August 18 show-cause hearing — and the fact that no further business was conducted by the court at that hearing other than the order that the funds be immediately released and that a to-be-agreed-upon sum of costs and interest be paid in $50 installments — it is a fair inference that the fact that there were proceedings at all in August was the result of a failure — of unknown cause — *569to release the $2,099.75 when the appeal period had run.

Neither can we find any support in the record for the dissent’s assertion that “[tjhere was no entry of this ‘judgment’ as required by Rule 58.” Post, ¶ 16. The docket entries, and the signed “Judgment Order on Appeal,” indicate that the judgment was entered consistent with that rule. See Baker v. Town of Goshen, 169 Vt. 145, 150, 730 A.2d 592, 596 (1999) (holding that Rule 58 requires court to sign a written judgment order, without which docket entry of court’s decision will not constitute entry of judgment or commence running of appeal period).

On September 5, the superior court granted Lanoue’s motion for pel-mission to appeal instead of forwarding it to this Court for review. On September 20, we dismissed Lanoue’s appeal because only this Court, and not the superior court, may grant permission to appeal a superior court judgment in a small claims action. See 12 V.S.A. § 5538; V.R.A.P. 6(b) (requiring parties to file requests for permission to appeal superior court decisions in small claims matters in the superior court for forwarding to this Court for decision). We ordered that Lanoue file a request to appeal with this Court within seven days. Lanoue filed the request on September 27, and we granted it.