H&E Equipment Services, Inc.
Cassani Electric, Inc. & Nicholas Cassani
Appeal from Superior Court, Franklin Unit, Civil Division
Thomas Z. Carlson, J.
M. Mayer of Mayer & Mayer, South Royalton, for
Martin, St. Albans, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
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 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. §
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. 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
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 ...