Opinion
No. COA10-714
Filed 15 March 2011 This case not for publication
Appeal by defendant from order entered 24 February 2010 by Judge James U. Downs in Haywood County Superior Court. Heard in the Court of Appeals 1 December 2010.
No brief filed on behalf of plaintiff-appellee. Robert M. Casella, pro se, defendant-appellant.
Haywood County No. 09 CVS 1431.
Robert M. Casella ("defendant") appeals from the trial court's order granting Mundaca Financial Services' ("plaintiff") motion to enforce a foreign judgment. After careful review, we reverse and remand for further consideration not inconsistent with this opinion.
Background
On 25 October 1995, a "Consent Judgment" in the amount of $50,000.00 was entered against defendant and in favor of Mundaca Investment Corporation in the Superior Court of Warren County, New Jersey. The judgment was subsequently assigned to plaintiff. On 27 October 2008, plaintiff filed a "Notice of Filing of Foreign Judgment" in the Superior Court of Haywood County, North Carolina. On or about 12 March 2009, defendant filed a "Motion for Relief from Execution Upon Foreign Judgment[,] For Stay of Execution, to Quash Execution and for Counsel Fees and Costs of the Action." On 13 April 2009, Judge Laura Bridges entered an order in which she ruled that, inter alia: (1) "The relief from foreign judgment requested by the Defendant herein is hereby GRANTED"; (2) "Enforcement of said Final Judgment is barred by the applicable statutes of limitations in the State of North Carolina"; and (3) "Any execution or other enforcement of the said foreign judgment is hereby quashed, and said judgment shall not be enforced in the State of North Carolina."
The order states that it was entered on 9 April 2009; however, it was file stamped 13 April 2009.
On 27 April 2009, plaintiff filed a "Notice of Motion to Revive Plaintiff's Judgment" in the Superior Court of Warren County, New Jersey. Plaintiff requested that the 25 October 1995 judgment be revived for "an additional 20 years." On 22 July 2009, the Warren County Superior Court granted plaintiff's motion to revive the judgment for 20 years.
On 7 October 2009, plaintiff again filed a "Notice of Filing of Foreign Judgment" in Haywood County Superior Court. On 20 November 2009, plaintiff filed a "Motion to Enforce Foreign Judgment." On 5 November 2009, defendant filed a "Notice of Defense to Foreign Judgment" and accompanying brief in support of his motion. The matter was heard before Judge James U. Downs in Haywood County Superior Court on 19 January 2010. On 24 February 2010, the trial court entered a written order in which it concluded as a matter of law:
1. It appearing to this court that the 2009 Judgment was entered in the Warren County Superior Court of New Jersey on July 22, 2009, and that said judgment is final and remains unsatisfied in whole or in part. The 2009 Judgment constitutes a new judgment under the laws of New Jersey pursuant to N.J.S.A. § 2A: 14-5.
2. It further appearing that this action is based upon the 2009 Judgment and not upon the 1995 Judgment and therefore its filing is within the ten year period prescribed by N.C.G.S. § 1-47.
(Emphasis added.) Accordingly, the trial court granted plaintiff's motion to enforce the foreign judgment. Defendant timely appealed to this Court.
Discussion
Defendant argues on appeal that the trial court erred in granting plaintiff's motion to enforce the foreign judgment because the statute of limitations had expired on the original 1995 judgment and the "revived" 2009 judgment did not constitute a new judgment as the trial court determined; rather, the revival constituted a continuance of the 1995 judgment. We agree that the revived judgment did not constitute a new judgment under New Jersey law and we remand for reconsideration by the trial court in light of this holding.
N.C. Gen. Stat. § 1-47(1) (2009) provides a 10-year statute of limitations period for any action "[u]pon a judgment or decree of any court of the United States, or of any state or territory thereof, from the date of its entry. No such action may be brought more than once, or have the effect to continue the lien of the original judgment." This statute "affects foreign and domestic judgments alike." Wener v. Perrone Cramer Realty, Inc., 137 N.C. App. 362, 364, 528 S.E.2d 65, 66 (2000). "Such a statute as the statute of limitations should be strictly construed and is a complete bar to a motion for leave to issue execution of a judgment, when such motion is made more than ten years after the rendition of such judgment." Powles v. Kandrasiewicz, 886 F.Supp. 1261, 1268 (W.D.N.C. 1995). It is undisputed that when plaintiff sought to enforce the 1995 judgment in 2008 it was barred by the 10-year statute of limitations in North Carolina. "It has long been established that the enforcement of a judgment of a sister state may be barred by application of the statute of limitations of the forum state." Matanuska Valley Lines, Inc. v. Molitor, 365 F.2d 358, 359-60 (9th Cir. 1966), cert. denied, 386 U.S. 914, 17 L. Ed. 2d 786 (1967).
However, under New Jersey law:
A judgment in any court of record in this state may be revived by proper proceedings or an action at law may be commenced thereon within 20 years next after the date thereof, but not thereafter. An action may be commenced on a judgment obtained in any other state or country within 20 years next after the date thereof or within the period in which a like action might be brought thereon in that state or country, whichever period is shorter, but not thereafter.
N.J. Stat. § 2A:14-5 (2009) (emphasis added). According to this statute, which provides a 20-year statute of limitations period, plaintiff's original 1995 judgment was still valid in New Jersey in 2008. Id.
After the trial court held that the 1995 judgment was barred by North Carolina's statute of limitations, plaintiff then sought to revive the 1995 judgment "by proper proceedings" when plaintiff filed a "Notice of Motion to Revive Plaintiff's Judgment" within 20 years of the original judgment. On 22 July 2009, the trial court revived the judgment "for a period of (20) years from June 26, 2009." Plaintiff then tried to enforce the revived judgment in North Carolina and the trial court held that the revived judgment was a "new judgment" and was, therefore, not barred by the statute of limitations. Defendant argues that under N.J. Stat. § 2A:14-5 revival "by proper proceedings[,]" as opposed to "an action at law[,]" is merely a continuation of the prior action and is not a "new judgment." Defendant is correct according to New Jersey law. See Union Nat. Bank v. Lamb, 337 U.S. 38, 43-44, 93 L. Ed. 1190, 1195-96 (1949) (noting that a determination as to whether a revival gives rise to a new judgment or merely continues the life of the original judgment is based on the law of the rendering state); United Leasing Corp. v. Plumides, 138 N.C. App. 696, 698, 531 S.E.2d 891, 893 (2000) (stating that "the validity and effect of a judgment of another state must be determined by reference to the laws of the state wherein the judgment was rendered. . . ." (citation and internal quotation marks omitted)).
In Kronstadt v. Kronstadt, 570 A.2d 485, 486 (N.J. Super. Ct. App. Div. 1990), the New Jersey intermediate appellate court was charged with determining what constituted a "proper proceeding" under N.J. Stat. § 2A:14-5. There, the plaintiff revived a judgment by "motion procedure" in the trial court. Id. at 487. In determining whether the "motion procedure" was a "proper proceeding[,]" the appellate court explained that the "source statute" for the current version of N.J. Stat. § 2A:14-5 provided for revival by scire facias, which is, by definition, "`merely a continuation of the original action.'" Id. at 486-87 (quoting Blacks Law Dictionary 1208 (5th Ed. 1979)); see also Twist v. Woerst, 127 A. 578, 579 (N.J. Sup. Ct. 1925) (stating "that a proceeding by scire facias to revive a judgment is not an original proceeding, but a mere continuance of the former suit, or, in other words, it is merely a supplementary remedy to aid in the recovery of the debt evidenced by the original judgment"). The court in Kronstadt then determined that the motion procedure employed by plaintiff to revive the judgment "was merely a continuation of the action resulting in the original judgments" and was, therefore, a "proper proceeding" which resulted in a revival of the original judgment. Kronstadt, 570 A.2d at 487-88. Accordingly, the motion procedure used by plaintiff in the present case was a proper proceeding that revived the original judgment for an additional 20 years; however, it is not a new judgment.
Having found that the 2009 revival constituted a new judgment, the trial court determined that plaintiff filed the judgment within the 10-year statute of limitations in North Carolina. We hold that the 2009 revival did not constitute a new judgment and, consequently, we reverse and remand this case to the trial court to reconsider the matter in light of our holding.
Reversed and Remanded.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).