Woodbine Condominium Assn. v. Lowe

Woodbine Condominium Association v. Lowe  (2002-151); 174 Vt. 457;
806 A.2d 1001

[Filed 24-Jun-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-151

                               JUNE TERM, 2002


Woodbine Condominium Association        }       APPEALED FROM:
                                        }
                                        }
  v.                                    }       Chittenden Superior Court
                                        }
Charles R. and Debra M. Lowe            }
                                        }       DOCKET NO. S0952-00 CnC

  In the above-entitled cause, the Clerk will enter:

       Woodbine Condominium Association moves to dismiss the appeal of
  Charles R. Lowe and Debra M. Lowe for lack of jurisdiction.  The
  Association argues that because the Lowes failed to seek timely permission
  of the trial court to appeal from a judgment of foreclosure on their
  condominium, this Court is without jurisdiction to hear this appeal.  The
  Association also requests that we impose V.R.A.P. 25(d) sanctions on
  appellants' attorney because he had no reasonable basis to believe that
  this appeal was grounded in law and was filed only to cause unnecessary
  delay.  We dismiss the appeal for lack of jurisdiction, but we do not
  impose sanctions.

       The relevant facts on appeal are not in dispute.  In July 2000, after
  homeowners Charles and Debra Lowe had fallen behind on their condominium
  association assessments, Woodbine Condominium Association (the Association)
  filed a complaint requesting foreclosure on homeowners' property. 
  Homeowners did not file anything in response to the complaint. 
  Accordingly, the Association moved the trial court to grant them default
  judgment.  The court held a hearing on the default judgment motion, but
  defendants did not appear at the hearing.  Nearly a month later, the court
  issued a default judgment and signed a decree of foreclosure.  After the
  redemption period had expired, the court issued the Association a
  certificate of non-redemption and a writ of possession.  More than a month
  later defendants filed a Rule 60(b) motion for relief from the default
  judgment and the decree of foreclosure, arguing that they should be granted
  relief because the Association failed to join Chittenden Bank, a junior
  lienholder, in the foreclosure proceedings and because of other equitable
  considerations.  See V.R.C.P. 60(b).  On December 12, 2001, the court
  denied the motion; homeowners filed a motion to reconsider in response.  On
  February 21, 2002, the court denied the motion to reconsider.  On March 22,
  2002, homeowners filed a notice of appeal from both the December 12 and
  February 21 judgments of the trial court.  Shortly thereafter, the
  Association filed this motion to dismiss and a motion for Rule 25(d)
  sanctions against homeowners' attorney.



       The Association argues that our decision in Citibank, N.A. v.
  Groshens, 171 Vt. 639, 768 A.2d 1272 (2000) (mem.), controls this case.  In
  Groshens, we dismissed a similar appeal for lack of jurisdiction because
  the appellant had failed to seek permission to appeal from the judgment of
  foreclosure.  Id. at 640, 768 A.2d  at 1273; see also 12 V.S.A. § 4601
  ("When a judgment is for the foreclosure of a mortgage, permission of the
  court shall be required for review."); V.R.C.P. 80.1(m) (permission to
  appeal from foreclosure judgment shall be filed within ten days of entry of
  judgment); Denlinger v. Mudgett, 151 Vt. 208, 210, 559 A.2d 661, 663 (1989)
  (compliance with § 4601 "is required in order to give this Court
  jurisdiction to review").

       Homeowners make two main arguments in reply.  First, they contend that
  they were not required to request permission to appeal because they are not
  appealing from the final foreclosure order.  Instead, they argue that the
  foreclosure judgment is final, and they are merely appealing from the
  denial of their Rule 60(b) motion for relief from the foreclosure judgment. 
  This is exactly what we confronted in Groshens: after the redemption period
  the homeowner filed a motion to reopen the foreclosure judgment.  We
  dismissed the appeal because "the legislative policy of promoting the
  finality of foreclosure judgments would be thwarted if § 4601 could be
  circumvented simply by filing a motion to reopen weeks or months after the
  entry of the foreclosure judgment.  This is particularly true in situations
  such as this where the redemption period has expired."  Groshens, 171 Vt.
  at 640, 768 A.2d  at 1273.  We see no reason to deviate from that
  legislative policy in this case.

       Homeowners also argue that Groshens does not control the outcome of
  this case because, there, we dealt with a mortgage foreclosure, but in the
  case at bar the foreclosure was based on a condominium assessment lien. 
  27A V.S.A. § 3-116(i) provides that a condominium assessment lien may be
  foreclosed pursuant to 12 V.S.A. § 4531a, the mortgage foreclosure
  provision.  The Lowes contend that they did not require the permission of
  the trial court to appeal because 27A V.S.A. § 3-116(i) does not
  specifically state that § 4601 applies to foreclosures based on condominium
  assessment liens.  We confronted a very similar issue in Darden v. O'Keefe,
  171 Vt. 571, 762 A.2d 852 (2000) (mem.).  Our decision was based on an
  interpretation of 12 V.S.A. § 2903(c), which provides that if a judgment
  lien is not satisfied within thirty days of recording, "it may be
  foreclosed and redeemed as provided in this title and V.R.C.P. 80.1."  12
  V.S.A. § 2903(c).  Section 2903(c) makes no specific reference to the
  foreclosure appeal process.  We held that the ten-day appeal provision, as
  well as the required permission, in § 4601 and V.R.C.P. 80.1 were
  applicable because an appeal could be part of any foreclosure action. 
  Thus, "the term 'it may be foreclosed' must include all the actions
  necessary to obtain a foreclosure decree, including if necessary, the
  appeal."  Darden, 171 Vt. at 571, 762 A.2d  at 853.  Similarly, in the case
  before us, 27A V.S.A. § 3-116(i) provides that "[t]he association's lien
  may be foreclosed pursuant to section 4531a of Title 12 in which case the
  association shall notify all the lienholders of the affected unit of its
  action."  Section 4531a is the same mortgage foreclosue provision
  referenced in the statute in Darden.  Accordingly, using the same reasoning
  as we did in Darden, we find that foreclosures based on condominium
  assessment liens are subject to the same ten-day permission-to-appeal
  requirement as mortgage foreclosures.

  

        
       Homeowners also argue that because the Association failed to join
  Chittenden Bank, a junior lienholder on the property, the foreclosure
  judgment should be reopened.  They contend that if Chittenden Bank had been
  properly joined in the proceedings, the bank would have paid the assessment
  lien, and the Association would have satisfied its claim.  We can see how
  these facts may create a cause of action for the bank, but they do not
  affect the rights of the parties in this case.  And, they are not
  sufficient to circumvent the Legislature's policy of promoting the finality
  of foreclosure judgments.  Because homeowners failed to request the trial
  court's permission to appeal the foreclosure within the required ten days,
  we have no jurisdiction over this appeal and must dismiss it.  See
  Denlinger v. Mudgett, 151 Vt. at 210-11, 559 A.2d  at 663.

       The Association also urges us to impose Rule 25(d) sanctions on
  homeowners' attorney.  Sanctions are meant to reduce unnecessary appellate
  caseload, but they are not meant to chill an attorney's enthusiasm or
  creativity.  Reporter's Notes, V.R.A.P. 25(d).  While the case on appeal
  was not strong, there was no case directly on point that contradicted the
  appellant's position, and the Lowes' attorney appears to have made a good
  faith argument that foreclosures based on condominium assessment liens
  should be treated differently from mortgage foreclosures.  See V.R.A.P.
  25(d).  Sanctions are not warranted.

       Appeal dismissed.  Appellee's motion for sanctions denied.




       BY THE COURT:



  _______________________________________
  Jeffrey L. Amestoy, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  James L. Morse, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice