NO. 95-175
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
LEWIS S. ROBINSON, III, et al.,
Plaintiffs and Appellants,
v.
FIRST WYOMINGBANK, N.A. JACKSON HOLE, * .i .%,Li~~
\.A
a Wyoming corporation, and FIRST WYOMING """~~~~~s~~~~~~~~~~~"'
BANCORPORATION, a Wyoming corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Michael J. Lilly, Berg, Lilly, Andriolo
& Tollefsen, Bozeman, Montana
For Respondents:
Malcolm H. Goodrich, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana
Submitted on Briefs: November 9, 1995
Decided: December 19, 1995
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal of an order of the Eighteenth Judicial
District Court, Gallatin County, denying Lewis S. and Linda T.
Robinsons' motion to quash a writ of execution issued on a Wyoming
judgment in favor of Key Bank of Wyoming, formerly First Wyoming
Bank (the bank), and a subsequent order granting summary judgment
in favor of the bank on the Robinsons' declaratory judgment action.
We reverse in part and affirm in part.
We restate the issues as follows:
1. Are the Robinsons barred from appealing the District
Court's April 14, 1994, order denying their motion to quash the
bank's writ of execution?
2. Did the District Court err in ruling that 28 U.S.C.
5 1963 created a new judgment for purposes of the six year period
during which a writ of execution can be issued?
3. Did the District Court err in failing to determine that
the bank should have complied with the Uniform Enforcement of
Foreign Judgments Act when it registered the Wyoming consent
judgment in Montana state court?
4. Did the District Court err in granting summary judgment
in favor of the bank on the Robinsons' declaratory judgment action?
FACTS
The Robinsons executed a promissory note in favor of the bank
on March 22, 1985, in the amount of $353,161. On August 30, 1985,
the Robinsons gave the bank a mortgage on property in the Gallatin
2
Valley (the property) as security for the promissory note. The
mortgage had an effective date of March 22, 1985.
1n the mid-1980s, the Robinsons and the bank became involved
in litigation in Wyoming over a variety of issues arising from the
bank's treatment of the Robinsons. The Robinsons sued the bank for
fraud, breach of contract, breach of fiduciary duty, RICO,
negligence, and punitive damages. The bank counterclaimed against
the Robinsons for payment of the promissory note together with
other outstanding obligations. The bank and the Robinsons entered
into a judgment by stipulated consent in which the Robinsons agreed
to pay the bank $175,000. This payment was intended to completely
replace the amount previously owed under the promissory note. The
judgment on this amount was entered in the Wyoming Federal Court on
December 3, 1987. It was not appealed by the Robinsons.
The Wyoming consent judgment was registered in the United
States District Court for Montana on August 1, 1989, pursuant to
28 U.S.C. 5 1963. On November 27, 1991, the bank filed a
transcript of the Montana federal court judgment with the Gallatin
County Clerk of Court. The bank caused the clerk of court to issue
four different writs of execution but the first three were returned
unsatisfied. The fourth writ was issued on December 16, 1993, and
was served on the Robinsons on January 3, 1994. On February 4,
1994, the Robinsons moved to dismiss the verified application for
sale of the property and to quash the writ.
On February 2, 1994, the Robinsons filed a completely separate
action against the bank seeking to have the bank's mortgage
3
declared null and void. The bank filed a motion with the District
Court to dismiss this action. Later, the bank moved to convert
their motion to dismiss to a motion for summary judgment,
On April 7, 1994, the Robinsons moved to consolidate the two
actions, which the court did on May 6. On April 14, 1994, the
court denied the Robinsons' motion to quash the writ and ruled that
the filing of the December 3, 1987, Wyoming judgment with the
Montana Federal Court on August 1, 1989, was the equivalent of
filing a new judgment. In its conclusion, the court determined
that the six years for issuing a writ of execution on that judgment
ran from August 1, 1989.
On May 2, 1994, the Robinsons moved the court to reconsider
its April 14 order. On May 6, 1994, when the court had entered the
order consolidating the two cases, it also noted that the bank's
motion to dismiss would be converted to a motion for summary
judgment. On June 17, 1994, the court denied Robinsons' motion for
reconsideration of its April 14 order.
The court entered an order granting summary judgment in favor
of the bank and against the Robinsons on February 2, 1995. From
both the April 14, 1994, and the February 2, 1995, orders, the
Robinsons appeal.
ISSUE 1
Are the Robinsons barred from appealing the District Court's
April 14, 1994, order denying their motion to quash the bank's writ
of execution?
The bank contends that the April 14, 1994, order was a
post-judgment order and a "special" order capable of appeal under
Rule l(b) (2), M.R.App.P. Thus, the time for its appeal expired on
May 14, 1994, and the Robinsons' February 23, 1995, appeal of this
order should be dismissed. The Robinsons counter that once the
cases were consolidated on May 6, the order became an interlocutory
order in the consolidated appeals. As a result, the Robinsons
contend the April 14 order was not subject to appeal at that time.
& Rule 1, M.R.App.P.; Matter of Sage Creek Drainage Area (1988),
234 Mont. 243, 763 P.2d 644.
The bank asserts that the order was entered prior to the
consolidation of the actions and cannot be viewed as an
interlocutory order in the consolidated proceedings. Other supreme
courts, however, have held that once cases are consolidated they
are one for all appellate purposes. Mallin v. Farmers Ins.
Exchange (Nev. 19901, 797 P.2d 978, 980; State v. District Court of
Second Judicial District (Wyo. 19631, 387 P.2d 550. In concurring
with this principle, the Ninth Circuit Court said:
In our view, the best approach is to permit the
zyyeal only when there is a final judgment that resolves
of the consolidated actions unless a 54(b)
certification is entered by the district court. This
leaves the discretion with the court which is best able
to evaluate the affect [sic] of an interim appeal on the
parties and on the expeditious resolution of the entire
action.
Huene v. United States (9th Cir. 1984), 743 F.2d 703, 705
(alteration in original).
In the present case, the order in question was issued on
April 14, 1994, which gave the Robinsons until May 14, 1994, in
which to file an appeal with this Court. The actions were
consolidated on May 6, 1994. Thus, the consolidation postponed the
time for appeal of the order to that of the court's final judgment
in the consolidated actions. We therefore hold that the substance
of the April 14, 1994, order is properly before this Court.
ISSUE 2
Did the District Court err in ruling that 28 U.S.C. § 1963
created a new judgment for purposes of the six year period during
which a writ of execution can be issued?
The Wyoming federal court judgment was registered in Montana
federal court pursuant to 28 U.S.C. § 1963. That section provides:
"A judgment so registered shall have the same effect as a judgment
of the district court of the district where registered and may be
enforced in like manner." The District Court concluded that
registration under this statute created a new judgment so that the
date of the Wyoming judgment for purposes of the issuance of a writ
of execution is the date that the judgment was registered in
Montana federal court. The Robinsons disagree, contending that the
plain language of § 1963 requires the six year period during which
a writ of execution can be issued under § 25-13-101, MCA, to
commence upon the date the judgment was docketed in Wyoming--
December 3, 1987.
The District Court's conclusion was in response to a question
of law. Accordingly, we will review questions of law to determine
6
if the district court's interpretation is correct. Farmers Plant
Aid, Inc. v. Huggins (1994), 266 Mont. 249, 252, 879 P.2d 1173,
1175. Federal courts have ruled inconsistently on whether the
registration of a judgment pursuant to 28 U.S.C. § 1963 creates a
new judgment date. Comoare Juneau Spruce Corp. v. International
Longshoremen's and Warehousemen's Union (U.S.D.C. Haw. 1955), 128
F. Supp. 697, with Stanford v. Utley (8th Cir. 1965), 341 F.2d 265,
a& United States v. Kellum (5th Cir. 1975), 523 F.2d 1284.
The Ninth Circuit Court, in Marx v. Go Publishing Co.
(9th Cir. 1983), 721 F.2d 1272, ruled that § 1963 created a new
judgment when it was filed in federal court. In that opinion,
however, the court looked to California state law and determined
that "[u]nder analogous California law, the ten year period for a
valid and enforceable judgment of a sister state runs anew from the
time of its filing in the state superior court . . . .l( Marx
-, 721
F.2d at 1273. The court then stated "[wle discern no reason why
the statute of limitations rule of the state should not apply to
the federal proceedings." Marx
-, 721 F.2d at 1273.
When the Wyoming judgment was registered in Montana federal
court, Montana had not yet adopted the Uniform Enforcement of
Foreign Judgments Act. Section 25-g-303, MCA, provided for the
registration of a federal judgment in state court, however, it was
limited to judgments rendered in the Circuit or District Court of
the United States, Ninth Circuit, District of Montana. This
statute does not address the registration of judgments of a sister
state, as did the California statute in -.
Marx Therefore, we have
7
no analogous state authority upon which to rely at the time the
judgment was registered and Marx is inapplicable.
While the Eighth Circuit, in Stanford, held that registration
under 5 1963 provided the equivalent of a new judgment in the
registration court, the issue presented in Stanford is distinguish-
able from the issue presented in this case. In Stanford, a 1956
Mississippi federal judgment was registered that year in Missouri
federal court pursuant to § 1963. Mississippi had a seven year
period of limitations, while Missouri had a ten year period of
limitations. The judgment creditor sought to discover Missouri
assets more than seven but less than ten years after registration
of the judgment in Missouri. The district court quashed the
action, reasoning that the judgment was dead under the Mississippi
seven year period of limitations. The Eighth Circuit found that
the Missouri registration equated to a new Missouri federal
judgment and went on to hold that:
It follows from this that the Missouri ten year period of
limitations, provide by V.A.M.S. § 516.350, and not the
Mississippi seven year period, applies so far as
enforcement is concerned, and that execution proceedings
by the plaintiff within the Missouri period, and
otherwise proper, are not subject to dismissal.
Stanford, 341 F.2d at 268.
In Stanford, the Court applied the Missouri ten year period of
limitations which allowed the enforcement of the judgment not only
from the date of registration, but also from the date the judgment
was originally docketed in Mississippi. After discussing the
8
number of questions that their decision would leave unanswered, the
Court in Stanford limited their holding:
The presence of these and undoubtedly many other
questions prompts us to emphasize that the conclusion we
reach here is one having application to the fact
situation of this case. We do not now go so far as to
say that registration effects a new judgment in the
registration court for every conceivable purpose; neither
do we say that it fails to do so for any particular
purpose.
I Stanford, 341 F.Zd at 271.
The Fifth Circuit recognized in Kellum that Stanford did not
hold that registration created a brand new judgment to be enforced
as if there had never been a prior judgment in the case. Kellum,
523 F.2d at 1289. The Ninth Circuit, in Matanuska Valley Lines,
Inc. v. Molitor (1966), 365 F.2d 358, also found that the rule in
Stanford was limited and stated "the holding of the Eighth Circuit
court relates to the effect of valid registration upon subsequent
enforcement proceedings." Matanuska, 365 F.2d at 360. In this
case, there is no issue as to valid registration of the Wyoming
federal judgment in the Montana federal court because the judgment
was still a "live" judgment under the laws of Wyoming at the time
it was registered. See Wyo. Stat. § l-17-307.
Regardless of whether Stanford stands for the proposition that
§ 1963 creates a new judgment in the registering state, that
interpretation of § 1963 has the deleterious effect of nullifying
the limitation period in both the issuing state and the registra-
tion state. In Wyoming, for example, a judgment becomes dormant
after five years if an execution is not issued within that period
9
although it may be revived under certain circumstances. See
Wyo. Stat. 55 l-16-502 and l-17-307. Under the bank's theory, if
a judgment creditor registered the judgment in Montana pursuant to
§ 1963 within five years after it was docketed in Wyoming, they
would have an additional six years to obtain a writ of execution in
Montana without leave of court and four additional years to obtain
a writ with leave of court. This extends the period in which to
execute the judgment to fourteen years, which is beyond either the
Montana or Wyoming limitation. Such a result is repugnant to the
laws of both states. See Powles v. Kandrasiewicz (w.D.N.c. 1995),
886 F. Supp. 1261.
We therefore adopt the analysis of the United States District
Court in Juneau which reviewed the legislative intent of the
enactment of 28 U.S.C. 5 1963 and concluded that "the plain and
simple purpose of the statute is enforcement of the original
judgment." Juneau, 128 F. Supp. at 700 (citing 1954 U.S.C.C.A.N.
3142, where Congress stated the original purpose of the statute
while discussing an amendment which extended the scope of § 1963 to
the district court of Alaska). The Juneau court determined
"[rlegistration is purely a ministerial act in the enforcement of
a foreign judgment [by reason that i]t confers upon this court no
power to alter the judgment itself." In contrast, a suit upon a
judgment differs from a registration in that a suit "is a new and
independent action, not ancillary to the original action." Juneau,
128 F. Supp. at 699.
10
Clearly there is an intended difference in bringing a separate
action for the enforcement of a judgment and in merely registering
a judgment where both creditors and debtors are relieved of the
additional cost and harassment of further litigation. See 1954
U.S.C.C.A.N. 3142. This difference reflects the ministerial effect
of registration under 28 U.S.C. § 1963 and that registration should
not cause a new judgment date.
We hold that the six year period during which a writ of
execution can be issued under 5 25-13-101, MCA, commences on the
date the judgment was docketed in the original forum when a
judgment is filed in Montana federal court pursuant to § 1963. We
therefore conclude the District Court erred when it held that
28 U.S.C. 5 1963 created a new judgment for purposes of the six
year period during which a writ of execution can be issued and we
reverse the District Court on that issue. As a result of this
holding, the period during which the bank could cause a writ to be
issued began to run from the date of the Wyoming judgment,
December 3, 1987. The six year period referenced in § 25-13-101,
MCA, expired on December 3, 1993, thus barring the writ issued on
December 16, 1993.
ISSUE 3
Did the District Court err in failing to determine that the
bank should have complied with the Uniform Enforcement of Foreign
Judgments Act when it registered the Wyoming consent judgment in
Montana state court?
11
The Robinsons claim that the bank did not comply with the
procedures set forth in the Montana Uniform Enforcement of Foreign
Judgments Act, §§ 25-g-501 to -508, MCA. The District Court, in
its April 14, 1994, order, noted that the Uniform Act was not in
effect at the time the Wyoming judgment was registered in Montana
federal court. The court went on to find that there was nothing in
the record to indicate that the bank did not comply with the
procedures set forth in 28 U.S.C. 5 1963. The court concluded that
the Uniform Act did not apply retroactively to the bank under the
facts of this case.
We will review a district court's conclusion of law for its
correctness. Farmers Plant Aid, 879 P.2d at 1175. The District
Court was correct in that the Uniform Act did not apply to the
registration of the Wyoming judgment in the Montana federal
district court. However, the judgment was then filed in state
district court subsequent to Montana's adoption of the Uniform Act.
The Robinsons assert that the Uniform Act should have been followed
by the bank when it filed the Montana federal court judgment in the
Montana district court. Contrarily, the bank argues that a foreign
judgment under the Uniform Act should be construed to mean a
judgment of any non-Montana federal or state court. Under the
bank's reasoning, the bank should not be obliged to follow the Act
where the federal court and the state court in which the federal
judgment is filed are located in the same state.
Section 25-g-502, MCA, in the Uniform Act defines a "foreign
judgment" to mean "a judgment, decree, or order of a court of the
12
United States or of any other court which is entitled to full faith
and credit in this state." Where the language of a statute is
clear and unambiguous, we look no further than to the plain meaning
of the statute for its interpretation. Howell v. State (19941, 263
Mont. 275, 284, 868 P.2d 568, 573. The Uniform Act clearly applies
to federal court judgments registered in state district courts
regardless of whether the federal court is located in the same
state as the state court
Our holding that the Uniform Act applied to the registration
of Montana as well as non-Montana federal court judgments is not
dispositive of this issue. We earlier cited § 25-g-303, MCA, which
provides for the filing of a transcript of a Montana federal court
judgment in state court. This statute, enacted in 1927, is not
referenced in the Uniform Act and provides, in part, as follows:
25-g-303. Filing of transcript of docket of federal
court -- lien -- (1) A transcript
expiration. of the
original docket of a judgment that is rendered in the
circuit or district court of the United States, ninth
circuit, district of Montana, and that is certified by
the clerk of court may be filed with the district court
clerk of any county. From the time of the filing, the
judgment becomes a lien upon all real property of the
judgment debtor that is not exempt from execution in the
county and that is either owned by the judgment debtor at
the time or afterward acquired by the judgment debtor
before the lien expires. Except as provided in subsection
(2), the lien continues for 6 years unless the judgment
is previously satisfied.
Given the continued vitality of that statute and the
oft-stated rules that a repeal of a statute by implication is
disfavored, § 25-9-303(l), MCA, provides an alternative method for
filing a judgment of a Montana federal court in Montana state court
13
in addition to the procedure under the Uniform Act. The bank, in
filing a "Transcript of Judgment" from the Montana federal court in
the Montana state court, complied with 5 25-9-303(l), MCA.
We hold that the bank was not required to register the
judgment in Montana state court under the Uniform Act because the
bank had the option of filing the judgment pursuant to
§ 25-9-303(l), MCA. Our holding in Issue 2 that the December 16,
1994, writ of execution was defective does not render this point
moot since the transcript of judgment was properly filed pursuant
to § 25-9-303(l), MCA, and the bank could request leave of court to
have the clerk of court issue a writ pursuant to § 25-13-102, MCA.
ISSUE 4
Did the District Court err in granting summary judgment in
favor of the bank on the Robinsons' declaratory action?
The Robinsons brought an action in District Court for a
declaratory judgment ordering that the mortgage the bank held on
the Robinsons' Montana property be declared null and void. In that
action, the Robinsons claimed the bank's mortgage was invalid for
two reasons--there was a failure of consideration for the mortgage
and the eight-year statute of limitations for foreclosing on a
mortgage, 5 27-2-202(l), MCA, had expired.
The Robinsons also claimed that the mortgage slandered the
title to their property. They did not, however, set forth an
argument for their claim of slander in either the District Court or
this Court, and therefore, we will not address the merits of that
14
claim. See Alamaras v. Yellowstone Basin Properties (1991), 248
Mont. 477, 483, 812 P.2d 770, 773.
In considering the Robinsons' first two claims, the District
Court granted summary judgment in favor of the bank. The court
determined that there were no questions of fact and the bank was
entitled to judgment as a matter of law. The standard we employ in
reviewing a district court's summary judgment is the same as that
employed by the district court. Summary judgment is proper only
when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Klawitter v.
Dettmann (Mont. 1995), 51 St. Rep. 1296.
The Robinsons claim a question of fact exists as to whether
consideration was given for the mortgage. The court determined
that the Wyoming judgment resolved the issue of whether there was
consideration for both the promissory note and the mortgage
executed by the Robinsons. The court concluded there was no
question of fact and principles of res judicata barred relitigation
of this claim as a matter of law. The Robinsons assert that the
Wyoming consent judgment was based solely on consideration for the
promissory note, while the mortgage is the subject of the present
action.
The Wyoming consent judgment, however, stated that " [al11
mortgages and security interests . . shall . . . secure the
payment of this judgment." By this statement, the Robinsons agreed
that the consideration for the mortgage is security of the
judgment. The Robinsons did not appeal the consent judgment.
15
In HKM Assoc. v. Northwest Pipe Fittings (Mont. 1995), 900
P.2d 302, 305, 52 St. Rep. 692, 694, we set out a three-part test
for collateral estoppel.
Collateral estoppel bars an action . . . when: (I) the
issue presented in a later action has been decided in a
prior adjudication; (2) a final judgment in the action
was issued; and (3) the party against whom collateral
estoppel is asserted was a party to the previous
litigation.
HKM Assoc., 900 P.2d at 305 (citing Berlin v. Boedecker (19941, 268
Mont. 444, 453, 887 P.2d 1180, 1185; Farmers Plant Aid, 879 P.2d at
1176. In the instant case, the Robinsons raise the issue of
whether there was consideration for the mortgage. The Wyoming
consent judgment recognized that the mortgage was valid and secured
payment of the judgment thereby resolving the identical issue now
presented. Additionally, there was a final judgment that held the
mortgage was valid, and finally, the Robinsons were a party to both
the Wyoming judgment and the declaratory action before us. We
therefore conclude that the Robinsons are estopped from claiming
there was no consideration for the mortgage.
Although our conclusion is based on collateral estoppel rather
than res judicata, we will uphold the result reached by the
District Court since it iS Correct, regardless of the reason given
for it. See Lindey's v. Goodover (19941, 264 Mont. 449, 453, 872
P.2d 764, 766. We therefore hold that the District Court did not
err in finding there was no question of fact and that the
Robinsons' first claim should be dismissed.
16
The Robinsons argued in their motion to the District Court for
summary judgment that they were entitled to an order declaring the
mortgage invalid since eight years had passed from when the
mortgage became due and its foreclosure was barred by the statute
of limitations in § 27-2-202(l), MCA. The District Court, while
noting that the Wyoming judgment ordered that the mortgage secure
the payment of the promissory note, went on to analyze the issue in
the context of a judgment lien. In ultimately holding that the
statute of limitations had not run on the execution of a judgment
lien, the court denied the Robinsons' motion and granted the bank's
motion for summary judgment instead.
The Robinsons argued on appeal that the issue was the validity
of the mortgage and again urged that the eight year statute of
limitations had expired and the mortgage is therefore invalid and
unenforceable. As we have noted, in the Wyoming consent judgment
the parties agreed to the order which provided that the mortgage
"shall continue in effect and secure the payment of this judgment
until such time this judgment has been fully paid and satisfied."
According to the order, the Robinsons and the bank agreed to extend
the mortgage until the judgment was paid. This Court has held that
parties may agree to extend the life of a mortgage. Aitken v. Lane
(1939), 108 Mont. 368, 375, 92 P.2d 628, 630. We conclude that the
Wyoming consent judgment tolled the statute of limitations until
the underlying obligation was paid, and therefore, the statute of
limitations had not yet begun to run on the enforcement of the
bank's mortgage.
17
Since the Robinsons agreed to toll the statute of limitations
in the Wyoming consent judgment, they cannot now argue that the
eight year statute under § 27-2-202(l), MCA, has run on the
mortgage. This Court however makes no determination as to the
effect of the tolled statute of limitations in regard to the
mortgage.
Although we do not follow its reasoning, we agree with the
District Court's result on the issue of whether the statute of
limitations has expired. See Lindev's, 872 P.2d at 766. Therefore,
we conclude that the District Court did not err in holding that the
statute of limitations had not run on the execution of a judgment
lien.
In summary, the District Court's April 14, 1994, order is
properly before this court due to the consolidations of the two
district court actions. We reverse the District Court's ruling
that 28 U.S.C. Ii 1963 created a new judgment for purposes of the
six year period for issuing a writ of execution found in
5 25-13-101, MCA, and conclude that the bank's writ is quashed
because of the expiration of that period. We further conclude that
the bank properly filed a transcript of the Montana federal court
judgment in state court pursuant to § 25-9-303(l), MCA. Although
we rely on other grounds, we affirm the District Court's grant of
summary judgment in the declaratory judgment action in favor of the
bank on the Robinsons' claim that the mortgage is invalid due to a
lack of consideration. Finally, we again rely on other grounds to
affirm the District Court's granting of summary judgment in favor
18
of the bank in the declaratory judgment action on the Robinsons'
statute of limitations argument. The parties clearly agreed to
toll the statute of limitations for foreclosing on the mortgage
until the judgment was satisfied.
Justice
We concur:
Chief Justice
Justices
19
Justice James C. Nelson concurs and dissents.
I agree with our analysis of Issues I, 3 and 4 and dissent
from our decision on Issue 2.
On Issue 2, I disagree with our conclusion that on
registration of the Wyoming federal court judgment in Montana
federal district court, a new judgment was not created under 28
U.S.C. 5 1963. In my view, we should interpret the effect of
registration under this federal statute as the federal circuit
courts have.
In Stanford v. Utley (8th Cir. 1965), 341 F.2d 265, then
Circuit Judge Blackmun, wrote what is probably the seminal decision
interpreting § 1963. Contrary to our decision here, the federal
court stated:
We have concluded that § 1963 is more than "ministerial"
and is more than a mere procedural device for the
collection of the foreign judgment. We feel that
registration provides, so far as enforcement is
concerned, the equivalent of a new judgment of the
registration court. [Emphasis added.]
Stanford, 341 F.2d at 268.
The court based its conclusion on several considerations.
First, the court found the statute to be more comprehensive than
the limited execution type of statute exemplified by 28 U.S.C. 5
2413. Moreover the clear, unambiguous and purposeful language of
§ 1963 requires registration to "have the same effect as a
judgment," rather than something far inferior. Second, giving the
transferred judgment "lesser status" would thwart some or all of
the purposes of § 1963, which include the simplification and
20
facilitation of enforcement of federal judgments; the elimination
of the necessity and expense of a second lawsuit; and the avoidance
of impediments such as diversity of citizenship which new and
distinct federal litigation might otherwise encounter. Third, the
authorities (Moore's Federal Practice; Barron & Holtzoff, Federal
Practice and Procedure; and the Restatement of Conflict of Laws;
for example) do not narrow the language of the statute in their
comments and applications. Fourth, § 1963 appears to be broader in
its language and scope than a mere "ministerial" or enforcement aid
and has some substantive aspect as opposed to being exclusively
procedural in character. Stanford, 341 F.2d at 270-71.
Moreover, without attempting to reconcile the conflicting
language used by the two federal district courts in Juneau Spruce
Corp. v. International Longshoremen's & Warehousemen's Union
(N.D.Cal. 1955), 128 F.Supp. 715; and Juneau Spruce Corp. v.
International Longshoremen's & Warehousemen's Union (D. Hawaii
19551, 128 F.Supp 697, Judge Blackmun, nevertheless, found the
actual holdings of those two cases--that timely registration opens
the way to enforcement procedure in the registration court--were
consistent with the court's decision in Stanford. Stanford 341
F.2d at 268-69.
Finally, Marx v. Go Pub. Co., Inc. (9th Cir. 19831, 721 F.2d
1272, is consistent with Stanford in holding that registration
under § 1963 creates a new judgment. As the majority points out,
Montana had not in 1987 yet adopted the registration procedures
under the Uniform Enforcement of Foreign Judgments Act. The only
21
conclusion that I can draw from that statement in reference to this
issue is that if the Uniform Act had been in effect in 1987, then
a federal court looking to Montana law (i.e. the Uniform Act) would
have concluded that registration of a foreign judgment in Montana
under that Act would have created a "new" Montana judgment. In
that I agree.
Moreover, that conclusion is consistent with the Montana law
that was in effect in 1987. Specifically, 5 27-2-201, MCA, did (and
still does) permit actions on judgments of federal and state courts
of record to be commenced in Montana within 10 years from the date
of entry of the judgment. Section 27-2-201(l), MCA. Nothing in
that section or in our case law indicates that in Montana a
judgment obtained by suing out federal or sister state court
judgment would not be a "new" judgment for all purposes. In fact,
our current case law compels the opposite conclusion. See Welch v.
Huber (1993), 262 Mont. 114, 862 P.2d 1180; and Jones v. Arnold
(Mont. 1995), 900 P.2d 917, 924, 52 St.Rep. 779, 783, which
indicate that, as to domestic judgments, a judgment obtained
through an action on a judgment is a "new" judgment.
Furthermore, § 25-g-303, MCA, discussed in our opinion also
lends support to the conclusion that registration creates a "new"
judgment for execution purposes. Section 25-9-303(l), MCA,
provides, in pertinent part that:
From the time of the filing [of the federal court
judgment with the clerk of the state district court], the
judgment becomes a lien upon all real property of the
judgment debtor that is not exempt from execution in the
county and . . . the lien continues for 6 years unless
the judgment is previously satisfied. [Emphasis added.]
22
I suggest that it is more than mere coincidence that the time
period during which the judgment lien is in effect on filing of the
federal court judgment in state court under this statute, is
exactly the same time period as the judgment lien for "new"
judgments docketed with the clerk of court. See 5 25-g-301(2),
MCA. If the filing of the federal court judgment in state court
did not create a "new" judgment, then the statute could not provide
unequivocally for a full 6-year judgment lien. Rather, the length
of the lien from the state court filing would be dependent upon the
running of some other time period which commenced when the federal
judgment was originally issued.
Accordingly, until our decision here, I suggest that a federal
court that looked to Montana law in general and to §§ 27-2-201(l)
and 25-g-303 (11, MCA, in particular, to determine whether
registration under § 1963 created a new judgment in this state,
would likely have come to the same conclusion as did the court in
Marx.
At least until this case, it appears that the registration of
or suing out of a foreign federal or state court judgment in
Montana would create a "new" judgment in this state. The same is
true of a Montana federal court judgment transferred by filing of
a transcript of judgment in the state district court. The mischief
in our decision here is that, now, execution in Montana on a whole
class of judgments originating in other jurisdictions must
henceforth be accomplished, not in accordance with time limits
clearly established in Montana law, but rather, in reference to
23
time limitations established in the originating states.
Accordingly, I would hold that under § 1963, a new judgment was
created when the Wyoming federal court judgment was registered in
Montana federal district court on August 1, 1989, and I dissent
from our conclusion to the contrary.
Justice Karla M. Gray joins i
and dissent.
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Justice W. William Leaphart, dissenting.
I concur with the Court's holding in issues one and two, and
specially concur in issue four. However, I dissent from our
holding in issue number three that § 25-9-303(l), MCA, provides an
alternative method for filing a judgment of a Montana Federal
District Court in a Montana State Court in addition to the
procedure provided for in the Uniform Enforcement of Foreign
Judgments Act, §§ 25-9-501through -508, MCA. Section 25-9-303(l),
MCA, predates the Uniform Act. It provides that a foreign judgment
may be filed in Montana State Court by the filing of a "transcript
of the original docket of a judgment." The Uniform Act, passed in
1989, provides that a foreign judgment is filed in Montana State
Court by the filing of an authenticated copy of the foreign
judgment with the clerk of the district court. Section 25-g-503,
MCA. Thus, § 25-9-303(l), MCA, conflicts with the Uniform Act
requirement that an authenticated copy of the judgment be filed.
I would hold that the Uniform Act impliedly repeals the
inconsistent provisions of the prior law.
Generally, repeal by implication is not favored unless the
statutes in question are irreconcilable. W.R. Grace & Co. v.
Department of Revenue (1989), 238 Mont. 439, 450, 779 P.2d 470,
476, cert. denied, 493 U.S. 1094, (1990); Montana Power Co. v.
Public Serv. Comm'n (1984), 214 Mont. 82, 93, 692 P.2d 432, 437-38;
State ex rel. Sol v. Bakker (1982), 199 Mont. 385, 392, 649 P.2d
456, 460. However, such repeal is necessary if the statutes are
irreconcilable and if repeal will give effect to the obvious
legislative intent expressed in passing the newer and more
comprehensive act. State v. Carisch Theatres, Inc. (1977), 172
25
Mont. 453, 458, 564 P.2d 1316, 1319
In many instances, this Court has held that the passage of
comprehensive uniform legislation repeals conflicting provisions of
earlier law. a, e.q., In re Holmes (19791, 183 Mont. 290, 298,
599 P.2d 344, 348 (holding that the Uniform Probate Code impliedly
repealed the Mortmain Statute); Carisch Theatres, 564 P.2d at 1319
(holding that a comprehensive movie theater licensing act impliedly
repealed an earlier conflicting licensing scheme); State v. Langan
(1968), 151 Mont. 558, 564, 445 P.2d 565, 569 (holding that the
Uniform Drug Act superseded prior search and seizure statutes).
Montana is not alone in following this rule of statutory
construction. & Peter v. State (Alaska 1975), 531 P.2d 1263;
Dairyland Ins. Co. v. Rose (N.M. 19791, 591 P.2d 281, 284; Rivera
v. District Court (Okla. 1993), 851 P.2d 524, 527. In Peter, the
Supreme Court of Alaska held that the Uniform Alcoholism and
Intoxication Treatment Act repealed by implication an earlier
statute prohibiting a person from being intoxicated while upon or
along a highway. Peter, 531 P.2d 1263. The Peter court recognized
two categories of repeal by implication:
There are two well-settled categories of repeals by
implication: (1) where provisions in the two acts are in
irreconcilable conflict, the later act to the extent of
the conflict constitutes an implied repeal of the earlier
one; and (2) if the later act covers the whole subject
of the earlier one and is clearly intended as a
substitute, it will operate similarly as a repeal of the
earlier act.
Peter, 531 P.2d at 1267 (citations omitted).
Both rationales apply to the instant case. First, § 25-g-503,
MCA, establishes a new and different method of filing a foreign
judgment; an authenticated copy of the judgment as opposed to a
26
transcript of the original docket pursuant to § 25-9-303(i), MCA.
It only makes sense that there should be just one acceptable method
of filing foreign judgments, otherwise there was no point to the
passage of the Uniform Act. The Uniform Act and § 25-9-303(I),
MCA, are irreconcilable, therefore § 25-g-503, MCA, impliedly
repeals § 25-9-303(l), MCA.
Second, as a Uniform Act, the Uniform Enforcement of Foreign
Judgments Act covers the whole subject area and was clearly
intended as a substitute. Repeal by implication is particularly
compelling in the case of a subsequent Uniform Act because one of
the primary purposes in adopting a Uniform Act is to bring the law
of the State of Montana into conformity with the laws of the other
states adopting the same Uniform Act. &, e.s., §§ 25-g-508, 25-
9-609, 25-9-715, MCA.
The Uniform Enforcement of Judgments Act does provide for an
"optional procedure" whereby a judgment creditor's right to bring
an action to enforce his judgment instead of proceeding under the
Uniform Act "remains unimpaired." Section 25-g-507, MCA.
Significantly, the Uniform Act does not provide that the prior
provision allowing the filing of a transcript pursuant to § 25-9-
303(1), MCA, remains unimpaired as an option. The Court, in
allowing the bank to pick and choose between compliance with the
Uniform Act and the conflicting provisions of § 25-9-303(l), MCA,
has defeated the whole goal of uniformity as set forth in 5 25-9-
508, MCA.
I conclude that the District Court erred in finding that the
Bank was not required to follow the Uniform Act in registering the
27
judgment in Montana State District Court.
Justice Terry N. Trieweiler joins in the foregoing dissent of
Justice W. William Leaphart.
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