2013-0291, Trinity EMS, Inc. v. Timothy Coombs

the 2003 judgment, plus additional court costs. At the hearing on the merits, debt, against the defendant to recover the amount it claimed was still owed on On March 28, 2012, the plaintiff commenced a new action, in a plea of

as of March 2012, the judgment had not been satisfied. defe ndant in the amount of $1,420. The defendant made some payments, but plaintiff obtained a default judgment in Plaistow D istrict C ourt against the The following facts are supported by the record. On April 4, 2003, the

Timothy Coombs. We reverse and remand. Court (DeVries, J.) dismissing its collection action against the defendant, HICKS, J. The plaintiff, Trinity EMS, Inc., appeals an order of the Circuit

Timothy Coombs, self - represented party, filed no brief.

Daniel C. Proctor, of Concord, on the brief, for the plaintiff.

No. 2013 - 291 10th Circuit Court – Plaistow District Division

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

(quotation omitted). complaint to determine whether, on its face, it asserts a cause of action.” Id. constitute a cause of action.” Id. at 401. We “must rigorously scrutinize the whether the plaintiff’s [complaint] contains facts which are sufficient to court’s order of dismissal [for failure to state a claim], [we] must determine state a claim upon which relief can be granted”). “[I]n reviewing the trial an action sua sponte where the allegations contained in a [complaint] do not N.H. 399, 40 p. 2 2 (1989) (noting that “[a] trial court has th e discretion to dismiss state a claim upon which relief could be granted. See Kennedy v. Titcomb, 131 for obtaining ‘an attachment’” makes clear that the dismissal was for failure to on the merits, its ruling on reconsiderati on that “[t]here is no Cause of Action Although the court dismissed the plaintiff’s 2012 action after a hearing

Hampshire Constitution. denies it a right to a remedy, thereby violatin g Part I, Article 14 of the New have been granted. In addition, the plaintiff argues that the trial court’s order p. 2 2012 action because its complaint set forth a claim upon which relief could On appeal, the plaintiff argues that the trial court erred in dismissing its

RSA 511.” was apparen tly never recorded and is beyond the limitation period set forth in attachment’ which is what Plaintiff is seeking. . . . Plaintiff has a judgment. It ruling, in relevant part: “There is no Cause of Action for obtaining ‘an The plaintiff moved for reconsideration. The court denied the motion,

scheduled in [the p. 2 2003 action ’s docket].” claimed to be owed.” Finally, the court ordered that “all hearings should be years has appeared. . . unable to satisfy judgment and disputes the amount open on t his C ourt’s docket.” The co urt further stated that “Defendant over the 2012. It noted that the 2003 action had been decided by default and “remains On March 18, 2013, the trial court dismissed the action commenced in

execution”). judgment in t he action in favor of the plaintiff on which he can take shall be held until the expiration of 6 years from the time of rendering a ( p. 2 2010) (providing, in pertinent part, that “[r]eal or personal property attached 511:55 imposes a six - year limit ation on such attachments. See RSA 511:55, I explained that the original 200 p. 3 3 judgment was “too old” to be recorde d, as RSA registry of deeds of the county in which the real estate is located”). He further during the duration of the judgment, a certified copy of the judgment with the chapter may be secured by real estate by recording or r e - recording, at any time 503:12, II (2010) (providing that “[a] judgment entered in accordance with this a new judgment, which [could be recorded] at the Registry of Deeds.” See RSA counsel for the plaintiff explained that the reason for the new action was “to get 3

plaintiff may renew his action ad infinitum upon each successive or in any other court of competent jurisdiction, and the judgment be maintained either in the court which rendered su ch judgment . . . A judgment is a debt of record upon which an action may

and runs for 10 years. rendered, the lien of which begins at the date of the new judgment had o n the original judgment and a new judgment may be years and before the expiration of 20 years, another action may be rendition of a judgment execution may be had on it, but after 10 construed, mean that at any time within 10 years after the These two sections must be construed together, and, when so

Town of New Chicago, 169 N.E. at 57 (quotation omitted). The court held: rendered for the space of ten years after the rendition thereof, and no longer.” estate and chattels real liable to execution in the county where judgment is judgments. . . for the recovery of money or costs shall be a lien upon real as it is here, and another statute provided, in pertinent part, that “final 1929). The statute of limitations on judgments at the time was twenty y ears, Town of New Chicago v. First State Bank of Hobart, 169 N.E. 56 (Ind. App. The Appellate Court of Indiana addressed a similar statutory scheme in

limit the term of a real estate attachment to a period of six years”). according to the plain language of RSA 511:55, “the legislature intended to with Remington Invs. v. Howard, 150 N.H. 65 p. 3 3, 655 (2004) (concludin g that brought within 20 years after the cause of action accrued, and not afterward.”), of debt upon judgments, recognizances, and contracts under seal may be the life of an attachment on real estate. Compare RSA 508:5 (2010) (“Actions the statute of limitations for an action of debt upon a judgment is longer than purpose. In other words, the plain tiff seeks to take advantage of the fact that defendant’s real estate, be cause the first judgment is no longer viable for that Here, the plaintiff seeks a new judgment, which it may use to attach the

of satisfaction.” Morse, 67 N.H. at p. 3 318. execution has been issued and not returned,. . . in the absence of plea or proof later held, in Morse, that a creditor may sue upon his judgment “even if an reasons the execution had failed we re app arent on the face of the return. We failed and the judgment remained unsatisfied, regardless of whether the of debt to obtain a new execution” where execution on the first judgment ha d Coffin, 8 N.H. 11 p. 4 4, 121 (1835), we hel d that “a creditor is entitled to an action the purpose of executing upon it is sanctioned in our law. In Burnham v. Pearl, 67 N.H. 317, 318 (189 2). Use of the action to obtain a new judgment for law right to sue upon his judgment as soon as it is rendered. . ..” Morse v. debt,” under the c ommon l aw. We agree. “A judgment creditor has a common - The plaintiff argues that its c omplaint in the 2012 action states a “plea of 4

the underlying judgment was rendered. The underlying judgment, unless omitted); in other words, it is a new and separate action from the suit in which cause of action,” McBurney v. Shaw, 1 p. 4 48 N.H. 248, 250 (2002) (quotation We have noted that “a n action on a judgment constitutes an original

J udgment and are now, res j udicata.” We agree. transpired prior to the rendition of th e 2003 Judgment have merged into that plaintiff argues that the defendant’s “allegations and arguments about what which price the amount of the original judgment is apparently based. The appropriateness of the price he was charged for the plaintiff’s services, upon claimed to be owed.” What the defendant appears to dispute, however, is the noted, the trial court’s order states that the defendant “disputes the amount We pause to clarify an issue that may arise on remand. As previously

decide cases on constitutional grounds only when necessary). See Olson v. Town of Fitzwilliam, 1 p. 4 42 N.H. 339, 345 (1997) (noting that we that the trial court’s order violates Part I, Article 14 of t he State Constitution. plaintiff’s favor on non - constitutional grounds, we need not address its claim of the plaintiff’s action and remand for further proceedings. Having held in the claim upon which relief may be granted. Acco rdingly, we reverse the dismissal v. Town of Rollinsford, 155 N.H. 669, 670 (2007), the plaintiff has stated a inferences in the light most favorable to the plaintiff, Farm Family Cas. Ins. Co. court. Assuming the truth of these alleged facts, and construing all reasonable twenty years, with an outstanding balance within the jurisdictional limits of the Hampshire judgment against the defendant, rendered within the previous Here, the plaintiff pleaded that it was the holder of an unsatisfied New

Chicago court stated, “ad infinitum.” Town of New Chicago, 169 N.E. at 57. judgment. Theoretically, this procedure could be repeated, as the Town of New fourteen years within which to bring another action in debt and obtain a third 150 N.H. at 65 p. 4 4, but, under RSA 508:5, the judgment creditor wo uld still have expire six years from the date of the second judgment, see Remington Invs., defendant’s real estate. By operation of RSA 511:55, I, that attachment would years of the rendition of that j udgment, perfect an attachment of the within twenty years of its rendition, obtain a new judgment, and, within six provide that a judgment creditor may bring an action for debt on the judgment Similarly, RSA 508:5 and RSA 511:55, I, must be read together to

enacted ten - year statute of limitations on judgments). Cir. 200 p. 4 4) (applying Town of New Chicago in context of Indiana’s subsequently Id. (citations omitted); see also Stookey v. Lonay, 104 F. App ’ x 583, 584 (7th

would nullify the statute. within the 20 - year period of limitation. Any ot her construction judgment thus recovered, provided the action is brought any time p. 5 5

DALIANIS, C.J.