Darden v. O'Keefe

Darden v. O'Keefe (99-443); 171 Vt. 571; 762 A.2d 852 

[Filed 16-Oct-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-443

                              MARCH TERM, 2000


Lisa Darden	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Lamoille Superior Court
                                       }	
                                       }
Steven O'Keefe	                       }	DOCKET NO.137-7-98 Lecv

                                                Trial Judge: Alan W. Cheever


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


       Defendant Steven O'Keefe appeals from a summary judgment in favor of
  plaintiff Lisa Darden  on her judgment lien foreclosure complaint, claiming
  the court erred in: (1) deciding defendant's  property was not entitled to
  homestead protection; and (2) shortening the redemption period without 
  notice to him.  He challenges the authority of the trial court to condition
  his right of appeal on giving  a bond.  We agree that the trial court could
  condition his appeal on providing a bond and dismiss the  appeal for lack
  of jurisdiction.

       Plaintiff filed her judgment lien foreclosure complaint against
  defendant on July 17, 1998,  based on a judgment she obtained against him
  in 1992.  The underlying debt involves defendant's  failure to pay on a
  promissory note he gave to plaintiff to purchase land on which he has built
  a  house over a period of fifteen years.  Defendant resisted the judgment
  lien foreclosure action by  claiming that the land and house is a
  homestead, exempt from enforcement of the judgment lien by  27 V.S.A. §
  101.  See Mercier v. Partlow, 149 Vt. 523, 527, 546 A.2d 787, 790 (1988)
  (homestead  exemption applies in action to enforce judgment lien).  The
  parties filed cross-motions for summary  judgement on the issue, and the
  trial court granted plaintiff's motion ruling that homestead protection 
  did not apply on the facts of the case.  Defendant both filed a notice of
  appeal and moved for  permission to appeal, arguing, however, that
  permission was unnecessary.  The superior court ruled  that permission was
  necessary and granted it, conditional on defendant posting a $50,000 bond
  to  provide security for plaintiff's prospective losses.  Defendant failed
  to post the bond, arguing instead  that no permission was necessary, and
  plaintiff moved to dismiss the appeal because of defendant's  failure to
  comply with the appeal condition.

       The issue of whether permission to appeal is required in this case
  turns on the proper  interpretation of 12 V.S.A. § 2903(c) which provides:

 

    (c) If a judgment lien is not satisfied within 30 days of
    recording, it may be  foreclosed and redeemed as provided in this
    title and V.R.C.P. 80.1.

  The parties agree that the reference is to foreclosure and redemption of
  mortgages, the only  foreclosure procedure set out in Title 12 and the
  subject of Rule 80.1.  Plaintiff argues that the  procedure necessarily
  includes 12 V.S.A. § 4601, which provides: "When a judgment is for the 
  foreclosure of a mortgage, permission of the court shall be required for
  review."  Defendant argues  that the appeal procedure is not covered by the
  "foreclosed and redeemed" language of § 2903(c).

       We agree with plaintiff that the appeal period is included in the
  reference in § 2903(c).  As this  case demonstrates, an appeal may be a
  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.  Section 2903(c) contains a general
  incorporation by reference which "refers to  the law on the subject
  generally."  2B Sutherland, Statutory Construction § 51.07 at 190 (5th ed. 
  1992); see also United States Dep't of Energy v. Ohio, 503 U.S. 607, 617
  (1992) (general  incorporation of penalty provisions of other statutes
  encompassed all the terms of the referenced  statutes including their
  limitations).  That law, including the appeal permission requirement, is
  all  contained in Chapter 163 of Title 12. 

       At least impliedly, we took that view in drafting V.R.C.P. 80.1.  This
  rule originally covered  only mortgage foreclosures and was amended in 1981
  to implement the 1979 enactment of § 2903(c)  that created the judgment
  lien.  See Reporter's Notes to 1981 Amendment to V.R.C.P. 80.1.  Rather 
  than amend all its sections to specifically include judgment liens in their
  coverage, section (l)  (originally (g)) was added to provide: "(l) 
  Foreclosure of Judgment Liens.  This rule shall apply to  foreclosure of a
  judgment lien pursuant to statute."  Section (m) of the rule now
  specifically provides  that permission to appeal a mortgage foreclosure
  judgment be sought within ten days of the  judgment.

       We are unpersuaded by defendant's argument that the effect of this
  interpretation is that an  earlier narrow and precise statute, applicable
  only to a specific subject, is submerged by a later-enacted general
  statute.  See F.M. Burlington Co. v. Comm'r of Taxes, 134 Vt. 515, 518-19,
  365 A.2d 531, 533 (1976) (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)).  Our  ruling is only that 12 V.S.A. § 4601 is
  applicable to enforcement of judgment liens because it is  incorporated by
  reference; its application to mortgage foreclosure is unaffected.  Nor are
  we  persuaded that the Legislature may have decided to exempt appeals of
  judgment lien enforcement  actions from the permission requirement because
  they raise complicated questions of the application  of the homestead
  exemption.  The Legislature never referenced the homestead exemption in the 
  judgment lien law, see Mercier, 149 Vt. at 527, 546 A.2d  at 790, and
  judgment liens apply to all real  property, of which homesteads are only a
  part.  In any event, we do not agree that mortgage  foreclosure cases are
  less complicated than judgment lien enforcement actions or that the policy 
  behind the permission requirement is related to the complexity of the
  action. 

 

  Indeed, the absence of a reason why the Legislature would distinguish a
  judgment lien foreclosure  action from a mortgage foreclosure action for
  purposes of the appeal permission requirement weighs  against defendant's
  interpretation of the statute.  See Kellogg-Hubbard Library, Inc. v. Labor 
  Relations Bd., 162 Vt. 571, 577, 649 A.2d 784, 787 (1994).

       Because the permission requirement applies to appeals of judgment lien
  enforcement orders,  the court had the power to condition permission to
  appeal on posting a bond.  See Reporter's Notes to  1985 Amendment to
  V.R.C.P. 80.1; Factory Point Nat'l Bank v. Equinox Co., 110 Vt. 277, 279, 5 A.2d 462, 462 (1939).  Thus, the failure to post the bond deprives us of
  jurisdiction over the appeal.  See Denlinger v. Mudgett, 151 Vt. 208,
  210-11, 559 A.2d 661, 663 (1989).

       We recognize that we can review the exercise of the superior court's
  discretion with respect to  permission to appeal.  See Vermont Nat'l Bank
  v. Clark, 156 Vt. 143, 145, 588 A.2d 621, 622  (1991).  Defendant has not,
  however, claimed that the superior court abused its discretion in  imposing
  the bond requirement.  In the absence of such a claim, we cannot review the
  court's  condition.  Vermont-People's Nat'l Bank v. Robertson, 102 Vt. 379,
  380, 148 A. 408, 408 (1930).

       Appeal Dismissed.


                                       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