Marine Midland Bank v. Bicknell

Marine Midland Bank v. Bicknell (2003-127); 176 Vt. 389; 848 A.2d 1134

2004 VT 25

[Filed 19-Mar-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 25

                                No. 2003-127


  Marine Midland Bank	                         Supreme Court

                                                 On Appeal from
       v.	                                 Addison Superior Court


  David R. Bicknell	                         October Term, 2003

  Helen M. Toor, J.

  Alan A. Bjerke of Bauer, Anderson & Gravel, Burlington, and Steven D.
    Karlin of Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, New York,
    New York, for  Plaintiff-Appellant.

  Jon T. Alexander of Burak Anderson & Melloni, PLC, Burlington, for
    Defendant-Appellee.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.


       ¶  1.  AMESTOY, C.J.   Marine Midland Bank appeals the trial court's
  dismissal of its action to domesticate and enforce a 1991 New York judgment
  against appellee, David Bicknell.  We agree with the trial court that the
  action is barred by the statute of limitations, and therefore we affirm.
   
       ¶  2.  In 1991, appellant obtained a judgment against David R.
  Bicknell and a co-defendant in the amount of $231,292.98 in the Supreme
  Court for the County of New York, New York.  The judgment remains
  unsatisfied.  According to appellant, at the time the judgment was entered,
  and up until sometime in June 2000, Mr. Bicknell remained a resident of the
  State of New York.  Around June 2000, upon finding that Mr. Bicknell had
  relocated to Vermont, (FN1) appellant sought to domesticate the New York
  judgment in the Vermont courts.  Mr. Bicknell moved to dismiss for failure
  to state a claim, arguing that the action was barred by 12 V.S.A. § 506,
  the eight year statute of limitations for actions on judgments.  The court
  found that § 506 applied and that, contrary to appellant's assertion,
  Vermont's tolling statute, 12 V.S.A § 552, did not extend to this action
  because both parties were New York residents when the cause of action
  accrued.  Accordingly, the court granted Mr. Bicknell's motion to dismiss. 
  This appeal followed.

       ¶  3.  On review of a decision under Rule 12(b)(6) that plaintiff has
  failed to state a claim on which relief can be granted, we "must assume the
  factual allegations in [the] complaint are true," and determine whether "it
  appears beyond doubt that there exist no circumstances or facts which the
  plaintiff could prove above the claim made in his complaint which would
  entitle him to relief."  Ass'n of Haystack Prop. Owners, Inc. v. Sprague,
  145 Vt. 443, 444, 446, 494 A.2d 122, 123, 124 (internal quotations omitted)
  (1985).  On matters of statutory interpretation, however, our review is
  nondeferential and plenary.  State v. Koch, 169 Vt. 109, 112, 730 A.2d 577,
  580 (1999).  We look first to the plain meaning of the statutory language,
  and if it is clear and unambiguous, we will apply it, without resorting to
  statutory construction or determination of legislative intent.  Wentworth
  v. Fletcher Allen Health Care, 171 Vt. 614, 617, 765 A.2d 456, 461 (2000)
  (mem.).
   
       ¶  4.  In Vermont, "[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.  The judgment
  in this case was rendered in 1991, and the Vermont action was commenced in
  2000; thus, the action was prima facie barred by the statute.   See Capen
  v. Woodrow, 51 Vt. 106, 107 (1878).  Nevertheless, appellant claims that
  the action was tolled under 12 V.S.A. § 552 because Mr. Bicknell did not
  come to Vermont until 2000. 

       ¶  5.  Section 552 of title 12 provides

    If a person is out of the state when a cause of action . . .
    accrues against him, the action may be commenced within the time
    limited therefor after such person comes into the state.  If a
    person is absent from and resides out of the state after a cause
    of action accrues against him and before the statute has run, and
    he has not known property within the state which can by common
    process of law be attached, the time of his absence shall not be
    taken as part of the time limited for the commencement of the
    action. The provisions of this section shall not extend to a cause
    of action accruing in another state or government, when the
    parties thereto at the time of the accruing of such cause of
    action are residents of such other state or government.

  The statute thus indicates that there are some situations in which the
  cause of action will be tolled until the person comes into the state. 
  However, the statute's last clause expressly excludes actions accruing in
  other states where the parties are residents of the other states at the
  time of accrual.  The trial court found that it was clear from the
  complaint that both parties were residents of New York when the cause of
  action accrued, and therefore appellant could not avail itself of § 552 to
  avoid the statute of limitations period found in § 506.  We agree.  Section
  552 tolls a cause of action after its accrual while the defendant is out of
  the state and does not own property in Vermont that can be attached.  The
  last clause, however, excludes causes of action accruing in other states,
  so long as the parties to the accruing cause are residents of that state. 
  Trask v. Karrick, 94 Vt. 70, 73, 108 A. 846, 847 (1920). 
   
       ¶  6.  Appellant claims that the trial court erred in applying the
  exception to the tolling statute provided in § 552 because, although both
  parties were New York residents, the action on the judgment had not accrued
  under New York law.  Appellant relies on New York's C.P.L.R.. § 5014, the
  statutory authority under which a judgment creditor may bring an action on
  a New York judgment.  The creditor may do so only after a ten-year waiting
  period following the docketing of the judgment, C.P.L.R. § 5014(1); or
  where the judgment was entered on default and there was no personal service
  of the summons, C.P.L.R. § 5014(2); or where the court which rendered the
  judgment grants to the judgment creditor an order upon motion permitting
  the creditor to bring an  action, C.P.L.R. § 5014(3).  Because the action
  at issue here does not meet any of these provisions, appellant argues that
  the action never accrued while the parties were in New York.  Accordingly,
  appellant claims that the court erred in dismissing the action as untimely. 
  Appellant claims that the time when Mr. Bicknell allegedly established his
  domicile in Vermont - in 2000 - was appellant's first opportunity to bring
  an action on the judgment because the statutorily-imposed waiting period
  had barred -and was still barring- an action on the judgment in the New
  York courts.  Thus, for appellant, Mr. Bicknell's relocation  marks the
  time when the cause of action accrued and the tolling of the Vermont
  statute of limitations ended.  We disagree.
   
       ¶  7.  Vermont law governs all procedural issues in actions to
  enforce foreign judgments in Vermont courts.  Wursthaus, Inc. v. Cerreta,
  149 Vt. 54, 55-56 n.*, 539 A.2d 534, 535 n.* (1987); see also Restatement
  (2d) Conflict of Laws § 99 (1971) ("The local law of the forum determines
  the methods by which a judgment of another state is enforced.").  When a
  cause of action is brought in Vermont, Vermont law determines the accrual
  date and the limitations period.  See Jacques v. Jacques, 128 Vt. 140,
  141-42, 259 A.2d 779, 780-81 (1969).  Thus, a cause of action accrued in a
  foreign jurisdiction cannot be maintained after the time limit imposed by
  the Vermont statute for the same kind of action has expired.  Id., 259 A.2d 
  at 780.  Conversely, an action timely brought in Vermont can be maintained
  here even if time-barred in the jurisdiction where the action arose.  Id.
  at 142, 259 A.2d  at 781.  The only exception to this rule occurs when a
  foreign statute creates a new right of action and prescribes a specific
  limitation period.  Id.  That is not the case here, however.  An action
  upon a judgment is a well recognized common law action.  Koerber v.
  Middlesex College, 136 Vt. 4, 6, 383 A.2d 1054, 1055-56 (1978).  

       ¶  8.  Appellant is suing on a Vermont cause or right of action in a
  Vermont court.  Since the right to enforce the judgment is not a creature
  of a foreign statute, but rather a common law action, we cannot import a
  foreign statute to determine its accrual date.  Under Vermont law, "[a]
  judgment creditor generally has a right to bring an action upon a judgment
  at any time after its rendition, until it is barred by the statute of
  limitation."  Id. at 7, 383 A.2d  at 1056 (emphasis added).  An action on a
  foreign judgment not commenced within eight years is  prima facie barred by
  the statute.  See Capen, 51 Vt. at 107.  Although some jurisdictions - such
  as New York -  bar actions on judgments while execution is available in
  order to prevent "needless and vexatious litigation," in Vermont both
  enforcement and satisfaction methods arise and end at the same time. 
  Koerber, 136 Vt. at 7, 383 A.2d  at 1056; 12 V.S.A. § 506 ("Actions on
  judgments . . . shall be brought within eight years after rendition of the
  judgment."); 12 V.S.A. § 2681 ("[E]xecutions may be issued so long as the
  judgment remains unsatisfied, but not after eight years from the date of
  rendition of the judgment.").  We therefore agree with the trial court that
  the cause of action accrued when the parties were New York residents and
  thus the exception provided for in § 552 applies to this action. 
   
       ¶  9.  Contrary to appellant's assertions, this interpretation is
  consistent with the purpose of § 552.  The statute protects a plaintiff
  from the statute of limitations while plaintiff is unable to enforce his
  rights.  See Troll v. Hanauer, 57 Vt. 139, 141-42 (1884); Trask, 94 Vt. at
  73, 108 A.  at 848.  The statute's last clause excepts from this protection
  "a cause of action accruing in another state or government, when the
  parties thereto at the time of the accruing of such cause of action are
  residents of such other state or government." 12 V.S.A. § 552.  The purpose
  of the exception is to prevent a plaintiff from failing to act when he
  could have done so in the foreign state.  The exception does not apply,
  however, when the plaintiff had no opportunity to commence an action in the
  jurisdiction in which he resides. Troll, 57 Vt. at 141-42.  Accordingly, we
  have previously refused to apply the exception when the plaintiff had no
  prior opportunity to enforce his rights; for example, when at the time of
  accrual plaintiff and defendant were residents of different states, the
  defendant had no known property in the state where the action arose, and
  there was no meaningful opportunity to serve the defendant.  See id.;
  Trask, 94 Vt. at 73, 108 A.  at 848.  Here, however, appellant was able
  since November 1991 to act upon and satisfy its alleged judgment in New
  York through execution proceedings.  While we understand that under New
  York law appellant may have not been able to commence an action on the
  judgment, we find significant, for purposes of applying the statutory
  exception, that appellant had other enforcement mechanisms available and
  therefore had not been helpless while the statute of limitations was
  running. (FN2) 
   
       ¶  10.  Appellant would have us defer to New York's choice to bar
  actions on judgments while execution is available, in detriment of
  Vermont's legislative policy to set a definite time in which a creditor can
  enforce the payment of its debt by allowing the same amount of time by
  either actions on judgments or executions.  See 12 V.S.A. §§ 506, 2681. 
  Such deference to other states' policies through the importation of their
  procedural rules would compromise Vermont's own ability to control the
  timeliness of actions brought in its courts.  That is a result that the
  Legislature has sought to avoid, and it has done so through the express
  language of 12 V.S.A. § 552.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice



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                                  Footnotes


FN1.  The dates of Mr. Bicknell's residency and ownership of property in
  Vermont are disputed and not part of the record, and therefore we refer to
  them only to the extent they are necessary to state appellant's argument.

FN2.  Although not determinative, it is important to note that appellant not
  only had the remedy of execution available, but may have also been able to
  request an action on the judgment. Under New York C.P.L.R. § 5014 (3) the
  court that rendered the judgment may grant to the judgment creditor an
  order upon motion permitting the creditor to commence the action before the
  period provided for in § 5014(1).  In its brief, appellant ambiguously
  states, "no court order permitting an action on the judgment has been
  rendered," leaving thus unclear whether appellant ever attempted to avail
  itself of this alternative.