Notinger v. Brown

2009 DNH 043

• Court: District Court, D. New Hampshire
• Decided: March 31, 2009
• Docket: 08-CV-005-SM
• Status: Published

Opinion

Notinger v . Brown 08-CV-005-SM 03/31/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Steven M . Notinger, Trustee in Bankruptcy of David Deaver Brown and Simply Media, Inc., Plaintiff

v. Civil N o . 08-cv-05-SM Opinion N o . 2009 DNH 043 Christina Brown, individually and as Trustee of First Marcus Trust, Defendant

O R D E R

Following a bifurcated trial in which some of plaintiff’s

claims were tried to a jury and the remainder were tried to the

court, the court entered an amended judgment in favor of

plaintiff and against Christina Brown in the amount of

$1,648,000.00, and against Christina Brown, in her capacity as

trustee of the First Marcus Trust, in the amount of $231,894.84

(document n o . 1 1 3 ) . The court also entered a preliminary

injunction which, among other things, prohibited defendant from

selling or encumbering any of the Trust’s assets or her

beneficial interests in those assets (document n o . 7 6 ) .

Defendant filed a timely notice of appeal, which is currently

pending. Subsequently, plaintiff requested this court to issue

writs of execution against property held by Christina Brown in

both her individual and trustee capacities (document n o . 1 2 4 ) .

That request is denied. Rule 69 of the Federal Rules of Civil Procedure governs this

court’s issuance of writs of execution and provides:

Money Judgments; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution - and in proceedings supplementary to and in aid of judgment or execution - must accord with the procedure of the state where the court is located, but a federal statute governs to the extent is applies.

Fed. R. Civ. P. 69(a)(1) (emphasis supplied). Here, neither

party has suggested that a federal statute applies. Accordingly,

this court must apply the governing law of New Hampshire, which

provides, in pertinent part, that “[n]o execution shall issue

until the expiration of the appeal period.” N.H. Rev. Stat. Ann.

(“RSA”) 527:1.

Although plaintiff has not addressed the issue or provided a

brief in support of his request, it would seem that New Hampshire

law does not authorize the issuance of a writ of execution on a

judgment that is under appeal. In fact, RSA 527:1 appears to

have been interpreted to mean that a writ of execution may not

issue until the underlying judgment has become “final.” See

generally 5 R. Weibusch, N.H. Civil Practice and Procedure §

60.01, at 473 (1998). And, under New Hampshire law, a judgment

is not “final” until either the appeal period has run and no

appeal has been taken o r , if an appeal was taken, it has been

2 resolved. See, e.g., Simpson v . Young, 153 N.H. 4 7 1 , 4 8 0 ,

(2006); Arsenault v . Scanlon, 139 N.H. 5 9 2 , 593-594 (1995); In re

Donovan, 137 N.H. 7 8 , 81 (1993); Rollins v . Rollins, 122 N.H. 6,

9 (1982) (citing N.H. Super. C t . R. 7 4 ) . See also Hill of

Portsmouth Condo. Ass’n v . Parade Office, LLC, 2006 WL 2085266 at

* 2 , 2006 DNH 085 (D.N.H. July 2 6 , 2006).

To be sure, some states do authorize the issuance of writs

of execution during the pendency of an appeal. In such states,

however, that is a rare exception rather than the rule, and the

moving party must demonstrate unusual or equitable circumstances

justifying issuance of a writ of execution on a judgment that is

under appeal (e.g., frivolity of the appeal and dissipation of

assets). In this case, the circumstances of which the court is

aware (i.e., the attachments plaintiff secured against

defendant’s assets and the existence of the injunction) would

seem to counsel against issuance of writs of execution before the

appeal is resolved.

In light of the foregoing, plaintiff’s application for the

issuance of writs of execution (document n o . 124) is denied, but

without prejudice. If plaintiff believes he is entitled to the

issuance of such writs prior to the court of appeals’ resolution

of the pending appeal, he may file a new application, supported

3 by a legal memorandum thoroughly addressing at least the

following issues:

1. whether, under Fed. R. Civ. P. 69(a)(1), New Hampshire law governs the court’s issuance of writs of execution in this case; and

2. if s o , (a) whether plaintiff’s judgment serves as a lien against defendant’s property; and, if s o , (b) whether defendant is entitled to a stay of execution under state law. See Fed. R. Civ. P. 62(f); and

3. whether state law authorizes the issuance of writs of execution on judgments that are not yet final (e.g., subject to an ongoing appeal); and

4. if s o , whether plaintiff must demonstrate that exceptional or unusual circumstances warrant the issuance of writs of execution on a judgment not yet final.

Conclusion

Plaintiff’s application for writs of execution (document n o .

124) is denied, without prejudice, as inadequately supported. He

may either await the court of appeals’ decision in the pending

appeal before seeking writs of execution or he may re-file his

application, provided he addresses the legal issues presented

above and demonstrates his entitlement under applicable state

and/or federal law.

4 SO ORDERED.

/'fc^wrff*- Steven J./McAuliffe :hief^Judge

March 3 1 , 2009

cc: Andrew G. Bronson, Esq. Dudley C . Goar, pro se Stephen F. Gordon, Esq. Todd B . Gordon, Esq. Bruce A . Harwood, Esq. Geraldine L . Karonis, Esq. Middlesex Savings Bank, pro se Katherine San Filippo, pro se James V . Tabner, Esq. Angelika Thumm, pro se