Tucker v. Bushway

Annotate this Case
Tucker v. Bushway  (95-606); 166 Vt. 592; 689 A.2d 426

[Filed 10-Dec-1996]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-606

                            NOVEMBER TERM, 1996

Robert and Dorothy Tucker d/b/a      }     APPEALED FROM:
Tucker's Mobile Home Park            }
     v.                              }     Washington Superior Court
Lorenzo and Karen Bushway            }
                                     }     DOCKET NO.        133-3-95 Wncv

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

       Defendant tenants own a mobile home located on a lot in a mobile home
  park owned by plaintiff landlords.  Landlords served a notice of
  termination of tenancy on defendants alleging various violations of the
  rental agreement, including nonpayment of rent.  When tenants did not
  vacate the premises by the effective date of the notice, landlords brought
  an action for eviction. On October 18, 1995, the trial court entered
  judgment for landlords, ordering tenants to deliver possession of the
  premises and to pay back rent of $1,465.00.  On November 17, 1995, tenants
  paid all rent due plus interest.  Tenants then moved for discontinuance of
  the action pursuant to 12 V.S.A. § 4773.  The trial court denied the
  tenants' motion for discontinuance.  We reverse.

       An action for ejectment shall be discontinued if the defendant pays
  into court the rental payments in arrears, with interest and the costs of
  suit, "[b]efore final judgment."  12 V.S.A. § 4773.  Landlords contend that
  the date of final judgment was October 18, 1995, because the order issued
  by the trial court on that date was appealable.  Landlords cite to various
  cases for the proposition that a decision is final if it is appealable. 
  See Titus v. Titus, 128 Vt. 444, 444, 266 A.2d 432, 433 (1970); Beam v.
  Fish, 105 Vt. 96, 97-98, 163 A. 591, 592 (1933).  Thus, landlords argue
  that tenants, who paid the rental arrears on November 17, failed to make
  payment before final judgment.

       We conclude, however, that the term "final judgment" may assume
  different meanings depending on the context in which it is used.  Compare
  In re Waterhouse, 125 Vt. 202, 206, 212 A.2d 696, 699 (1965) (for purpose
  of levying execution of judgment, date of final judgment is the date
  judgment was affirmed on appeal) with Woodard v. Porter Hosp., Inc., 125
  Vt. 264, 265, 214 A.2d 67, 69-70 (1965) (for purpose of taking appeal, date
  of final judgment is date on which court issues decree that settles rights
  of parties).  Because the cases cited by landlords deal with the ability to
  take an appeal rather than application of 12 V.S.A. § 4773, they are not
  determinative of the instant case.

       We must construe § 4773 in light of its purpose and to avoid an
  irrational result.  See Santi v. Roxbury Town Sch. Dist., 7 Vt. L. W. 284,
  286 (1996).  The main problem with landlords' argument is that it requires
  the tenant to know the amount to be paid before the court determines what
  the tenant owes.  We also note that to give relief, the court's judgment
  must be followed by a writ of possession.  See 12 V.S.A. § 4854.  Once the
  landlord obtains a writ of possession, it would be irrational to allow the
  tenant to regain entry to the property.  We therefore hold that a judgment
  for possession is not final for purposes of § 4773 until the earlier


  of (a) the date of the issuance of the writ of possession, or (b) the date
  by which a notice of appeal must be filed.  Tenants in this case tendered
  the rent before the judgment became final and before a writ of possession
  was issued.  Pursuant to 12 V.S.A. § 4773, tenants were therefore entitled
  to have the eviction action discontinued.



     Frederic W. Allen, Chief Justice

     Ernest W. Gibson III, Associate Justice

     John A. Dooley, Associate Justice

     James L. Morse, Associate Justice

     Denise R. Johnson, Associate Justice