H&E Equipment Services, Inc. v. Cassani Electric, Inc.

         On Appeal from Superior Court, Franklin Unit, Civil Division Thomas Z. Carlson, J.

          Tavian M. Mayer of Mayer & Mayer, South Royalton, for Plaintiff-Appellee.

          Joshua Martin, St. Albans, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          SKOGLUND, J.

         ¶ 1. Defendant Nicholas Cassani appeals from the trial court's order granting summary judgment to plaintiff H&E Equipment Services, Inc. on its complaint to collect on a 2001 Arizona judgment. Defendant argues that the action is time-barred under 12 V.S.A. § 506. Alternatively, he contends that there is a material dispute of fact as to whether the Arizona court had personal jurisdiction over him at the time it entered its judgment. We affirm.

         ¶ 2. The record indicates the following. In February 2015, H&E filed a complaint against defendant^[1] in Vermont, seeking to collect an unpaid judgment from the State of Arizona in the amount of $56, 016.22 plus interest. H&E attached to its complaint a "judgment renewal affidavit" from Arizona dated February 2011. Under Arizona law, a judgment renewal affidavit renews and revives a judgment to the extent of the balance still owed. See A.R.S. § 12-1612 (setting forth requirements and process for filing judgment renewal affidavit and stating that filing of such affidavit "shall renew and revive the judgment to the extent of the balance shown due in the affidavit"). H&E originally obtained a default judgment against defendant in Arizona in 2001, and twice renewed and revived its judgment under Arizona law.

         ¶ 3. Defendant moved to dismiss H&E's complaint, arguing that the suit was barred under 12 V.S.A. § 506.^[2] That statute provides that "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after." Id. Defendant appeared to argue that the original 2001 Arizona judgment-rather than the 2011 renewed and revived judgment-was the controlling "judgment" for purposes of § 506, and thus, the complaint was untimely. Following a hearing, the court denied defendant's motion. It found that H&E properly renewed its judgment in Arizona under Arizona law, which governed the action at that time, and 12 V.S.A. § 506 did not apply to this process. Defendant moved for reconsideration, which the court denied.

         ¶ 4. H&E moved for summary judgment in December 2015. Citing Wursthaus, Inc. v. Cerreta, it argued that the Arizona judgment was "entitled to full faith and credit in the absence of a showing that that court lacked jurisdiction or acted to deprive defendant of a reasonable opportunity to be heard." 149 Vt. 54, 58, 539 A.2d 534, 537 (1987); see also Restatement (Second) of Conflict of Laws § 104 (1971) ("A judgment rendered without judicial jurisdiction or without adequate notice or adequate opportunity to be heard will not be recognized or enforced in the other states."). H&E explained that defendant had the heavy burden of showing that the judgment should not be enforced. See Wursthaus, 149 Vt. at 55, 539 A.2d at 535 ("The burden of undermining the decree of a sister state rests heavily upon the one who assails such decree.") (citing Cook v. Cook, 342 U.S. 126, 128 (1951) (same)).

         ¶ 5. H&E asserted that the undisputed facts, as recited by the Arizona court on the initial judgment order, established that defendant had been served by personal delivery of the summons and complaint in Arizona and that he failed to appear or answer. H&E then obtained a default judgment in March 2001 for $25, 981.19, plus interest at the rate of 10% per annum. As provided by Arizona law, H&E renewed its judgment before the Arizona statute of limitations period expired by filing a judgment renewal affidavit in the Maricopa County Superior Court in March 2006, and again in February 2011. Given these facts, H&E argued that the judgment should be enforced and that it was entitled to summary judgment in its favor.

         ¶ 6. The court granted summary judgment to H&E without providing defendant a full thirty days to respond, and defendant moved to set aside the decision on this basis. Defendant also opposed H&E's summary judgment motion. Defendant argued that the Arizona judgment should not be enforced because he was not properly served with the complaint in the underlying Arizona action. He provided a sworn statement to this effect and argued that his affidavit created a material dispute of fact. Even if the Arizona court had jurisdiction over him, defendant asserted that the judgment could not be enforced in Vermont under 12 V.S.A. § 506 because more than eight years had elapsed from the original judgment. Defendant made cursory references to other defenses as well.

         ¶ 7. The court agreed with defendant that it had granted summary judgment prematurely and set aside its judgment. It found, however, that defendant's opposition boiled down to an argument that he was not served in the Arizona proceeding and therefore that the Arizona judgment should not be recognized by a Vermont court.^[3] This argument rested on defendant's sworn statement to this effect. The court recognized that "a 'judgment' rendered without notice or appearance is no judgment at all." In re Hanrahan's Will, 109 Vt. 108, 120, 194 A. 471, 477 (1937). Here, however, the judgment itself recited that defendant was "regularly and properly served, " and the court found that this recital was entitled to as much full faith and credit as the judgment's dollar amount. See Wursthaus, 149 Vt. at 58, 539 A.2d at 537 (recognizing that under long established precedent, foreign judgment "is entitled to full faith and credit in the absence of a showing that that court lacked jurisdiction or acted to deprive defendant of a reasonable opportunity to be heard").

         ¶ 8. Given the Arizona judgment's recital that defendant was in fact served, and the holding in Wursthaus, the court found that defendant had the burden of making a reasonable showing that he was not actually served beyond his mere assertion to this effect. The court explained that Arizona presumably maintained court records dating back to 2001 when the original judgment was issued. Defendant had asked the court for additional opportunity to offer evidence "thus far NOT presented, " and pursuant to V.R.C.P. 56(e), the court allowed defendant sixty days to obtain and provide the court with admissible documentary evidence to show that he was not in fact "regularly and properly served" as recited in the Arizona judgment. Otherwise, citing V.R.C.P. 56(c), the court indicated that it might renew its grant of summary judgment based on defendant's failure to support his factual position with anything more than a bare assertion. The court recognized that its function was not to find facts on a motion for summary judgment. At the same time, however, it was mindful that there remained only a very narrow issued to be decided, whether by summary judgment or after hearing, and the court was not yet convinced that defendant met his burden of showing a genuine issue of material fact.

         ¶ 9. Defendant did not file anything with the court during the sixty-day period. In April 2016, H&E renewed its motion for summary judgment. Defendant did not respond to the renewed motion. In May 2016, the court granted H&E's request and entered ...