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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


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


                               TRINITY EMS, INC.

                                         v.

                               TIMOTHY COOMBS

                        Submitted: February 12, 2014
                        Opinion Issued: August 6, 2014

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


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

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

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

      On March 28, 2012, the plaintiff commenced a new action, in a plea of
debt, against the defendant to recover the amount it claimed was still owed on
the 2003 judgment, plus additional court costs. At the hearing on the merits,
counsel for the plaintiff explained that the reason for the new action was “to get
a new judgment, which [could be recorded] at the Registry of Deeds.” See RSA
503:12, II (2010) (providing that “[a] judgment entered in accordance with this
chapter may be secured by real estate by recording or re-recording, at any time
during the duration of the judgment, a certified copy of the judgment with the
registry of deeds of the county in which the real estate is located”). He further
explained that the original 2003 judgment was “too old” to be recorded, as RSA
511:55 imposes a six-year limitation on such attachments. See RSA 511:55, I
(2010) (providing, in pertinent part, that “[r]eal or personal property attached
shall be held until the expiration of 6 years from the time of rendering a
judgment in the action in favor of the plaintiff on which he can take
execution”).

      On March 18, 2013, the trial court dismissed the action commenced in
2012. It noted that the 2003 action had been decided by default and “remains
open on this Court’s docket.” The court further stated that “Defendant over the
years has appeared . . . unable to satisfy judgment and disputes the amount
claimed to be owed.” Finally, the court ordered that “all hearings should be
scheduled in [the 2003 action’s docket].”

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

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

       Although the court dismissed the plaintiff’s 2012 action after a hearing
on the merits, its ruling on reconsideration that “[t]here is no Cause of Action
for obtaining ‘an attachment’” makes clear that the dismissal was for failure to
state a claim upon which relief could be granted. See Kennedy v. Titcomb, 131
N.H. 399, 402 (1989) (noting that “[a] trial court has the discretion to dismiss
an action sua sponte where the allegations contained in a [complaint] do not
state a claim upon which relief can be granted”). “[I]n reviewing the trial
court’s order of dismissal [for failure to state a claim], [we] must determine
whether the plaintiff’s [complaint] contains facts which are sufficient to
constitute a cause of action.” Id. at 401. We “must rigorously scrutinize the
complaint to determine whether, on its face, it asserts a cause of action.” Id.
(quotation omitted).




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       The plaintiff argues that its complaint in the 2012 action states a “plea of
debt,” under the common law. We agree. “A judgment creditor has a common-
law right to sue upon his judgment as soon as it is rendered . . . .” Morse v.
Pearl, 67 N.H. 317, 318 (1892). Use of the action to obtain a new judgment for
the purpose of executing upon it is sanctioned in our law. In Burnham v.
Coffin, 8 N.H. 114, 121 (1835), we held that “a creditor is entitled to an action
of debt to obtain a new execution” where execution on the first judgment had
failed and the judgment remained unsatisfied, regardless of whether the
reasons the execution had failed were apparent on the face of the return. We
later held, in Morse, that a creditor may sue upon his judgment “even if an
execution has been issued and not returned, . . . in the absence of plea or proof
of satisfaction.” Morse, 67 N.H. at 318.

       Here, the plaintiff seeks a new judgment, which it may use to attach the
defendant’s real estate, because the first judgment is no longer viable for that
purpose. In other words, the plaintiff seeks to take advantage of the fact that
the statute of limitations for an action of debt upon a judgment is longer than
the life of an attachment on real estate. Compare RSA 508:5 (2010) (“Actions
of debt upon judgments, recognizances, and contracts under seal may be
brought within 20 years after the cause of action accrued, and not afterward.”),
with Remington Invs. v. Howard, 150 N.H. 653, 655 (2004) (concluding that
according to the plain language of RSA 511:55, “the legislature intended to
limit the term of a real estate attachment to a period of six years”).

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

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

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



                                        3
      judgment thus recovered, provided the action is brought any time
      within the 20-year period of limitation. Any other construction
      would nullify the statute.

Id. (citations omitted); see also Stookey v. Lonay, 104 F. App’x 583, 584 (7th
Cir. 2004) (applying Town of New Chicago in context of Indiana’s subsequently
enacted ten-year statute of limitations on judgments).

      Similarly, RSA 508:5 and RSA 511:55, I, must be read together to
provide that a judgment creditor may bring an action for debt on the judgment
within twenty years of its rendition, obtain a new judgment, and, within six
years of the rendition of that judgment, perfect an attachment of the
defendant’s real estate. By operation of RSA 511:55, I, that attachment would
expire six years from the date of the second judgment, see Remington Invs.,
150 N.H. at 654, but, under RSA 508:5, the judgment creditor would still have
fourteen years within which to bring another action in debt and obtain a third
judgment. Theoretically, this procedure could be repeated, as the Town of New
Chicago court stated, “ad infinitum.” Town of New Chicago, 169 N.E. at 57.

       Here, the plaintiff pleaded that it was the holder of an unsatisfied New
Hampshire judgment against the defendant, rendered within the previous
twenty years, with an outstanding balance within the jurisdictional limits of the
court. Assuming the truth of these alleged facts, and construing all reasonable
inferences in the light most favorable to the plaintiff, Farm Family Cas. Ins. Co.
v. Town of Rollinsford, 155 N.H. 669, 670 (2007), the plaintiff has stated a
claim upon which relief may be granted. Accordingly, we reverse the dismissal
of the plaintiff’s action and remand for further proceedings. Having held in the
plaintiff’s favor on non-constitutional grounds, we need not address its claim
that the trial court’s order violates Part I, Article 14 of the State Constitution.
See Olson v. Town of Fitzwilliam, 142 N.H. 339, 345 (1997) (noting that we
decide cases on constitutional grounds only when necessary).

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

      We have noted that “an action on a judgment constitutes an original
cause of action,” McBurney v. Shaw, 148 N.H. 248, 250 (2002) (quotation
omitted); in other words, it is a new and separate action from the suit in which
the underlying judgment was rendered. The underlying judgment, unless



                                        4
reversed or vacated, remains conclusive as to the parties and may not be
attacked either “collaterally, or by a direct suit between them upon the
judgment.” Hollister v. Abbott, 31 N.H. 442, 449 (1855). “The defendant is
now concluded and estopped to allege, either that no such judgment was
rendered, or that it is in any respect wrong, erroneous or mistaken in this
proceeding, which is designed not to revise or correct, but merely to enforce the
judgment.” Demeritt v. Lyford, 27 N.H. 541, 549 (1853); see also Hollister, 31
N.H. at 450 (noting that where the defendant “made no attempt to have the
judgment vacated,” but instead “suffered [it] to stand for years as a judgment
regularly obtained against him,” the judgment could not “now be defeated by a
state of facts, which, if timely interposed, might have been successful”).
Accordingly, the defendant is not entitled to collaterally attack the 2003
judgment in the 2012 action.

                                                  Reversed and remanded.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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