Denial of Rule 59(e) motion to amend judgment reversed. Rule 59 is available to reconsider and correct manifest, intrinsic error of law, whether or not expressed for the first time in the Rule 59(e) motion.

In re SPLand Co., LLC,  2011 VT 104 (Johnson, J.) (Reiber, C.J., dissenting.)


This appeal arises out of a dispute over an administrative amendment to the master development plan for Killington Resort Village. An adjoining property owner appeals the Environmental Court’s denial of its motion to alter and amend a grant of summary judgment in favor of applicants. Adjoiner argues that the Environmental Court erred because as a matter of law administrative amendments under Rule 34(D) require an underlying Act 250 land use permit. We agree and therefore reverse the denial of the motion to reconsider.


Applicant argues that Rule 59 does not permit reconsideration of the summary judgment ruling, especially on issues raised for the first time. The goal of Rule 59(e) is to “make clear that the [trial] court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.” Whether or not the Rule 34 issue was expressed for the first time in the Rule 59(e) motion, it was a question of law intrinsic to the Environmental Court’s summary judgment ruling and therefore well within the court’s discretion to reconsider on Rule 59(e) motion.


Rule 59(e) “gives the court broad power to alter or amend a judgment.” Reporter’s Notes, V.R.C.P. 59. We have stated that Rule 59(e), is “invoked ‘to support reconsideration of matters properly encompassed in a decision on the merits.’ ” Under this rule, “the court may reconsider issues previously before it, and generally may examine the correctness of the judgment itself.” Rule 59(e) “codified the trial court’s inherent power to open and correct, modify, or vacate its judgments.” See 11 C. Wright et al., Federal Practice and Procedure § 2810.1, at 124-25 (2d ed. 1995) (describing correction of manifest error of law upon which judgment is based as one of four basic grounds upon which Federal Rule of Civil Procedure 59(e) motion may be granted).


The trial court enjoys considerable discretion in deciding whether to grant such a motion to amend or alter. 11 Wright, supra, §2810.1, at 124. Indeed, we have held that the court’s power on a Rule 59(e) motion even extends to issues not raised in the motion. Once a Rule 59(e) motion is filed, the trial court has the power to make an appropriate modification or amendment, including issues not raised in the Rule 59(e) motion. This approach srikes “an appropriate balance between reconsideration and finality.”


Here, the Environmental Court was asked to reconsider an issue of legal interpretation “properly encompassed in a decision on the merits,” which in no way offended the interests of finality. The issue of whether a Rule 34(D) administrative amendment may be used to authorize a fifteen-lot subdivision absent positive findings on all Act 250 criteria is at the core of this case. It was thus well within the Environmental Court’s discretion to fully reconsider this question of law on the merits upon Rule 59(e) motion.


Because the Environmental Court fully considered on the merits the applicability of Rule 34(D), neither our preservation rule nor Rule 59(e) prevents us from considering it here.


Reiber, C.J., dissents because the issue the majority decides was not raised below in a timely and proper manner and therefore should not be reviewable on appeal. The question it addresses—whether an administrative amendment under Rule 34 requires an underlying Act 250 permit—was not raised with the trial court before the entry of judgment but only later in a Rule 59(e) motion to alter or amend.


As the majority acknowledges, it is well settled that a "Rule 59(e) motion may not be used . . . to raise arguments . . . that could have been raised prior to the entry of judgment."  Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the [trial] court prior to the judgment." Adjoiner plainly waived the issue the majority decides by failing to raise it either explicitly or implicitly throughout the lengthy litigation process that preceded the trial court's entry of judgment. Accordingly, on this basis I would affirm the judgment.