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
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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
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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.
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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
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