Tuesday, October 11, 2011

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.

Stare decisis. Burden of proof: “clear and convincing” standard applies to termination of parental rights, therefore finding of sexual abuse by a preponderance of the evidence was insufficient to support family division order prohibiting parental contact.

DeSantis v. Pegues, 2011 VT 114 (Skoglund, J.) (Johnson, J., joined by Justice Dooley concurring) (Crawford, Supr. J., Specially Assigned, dissenting.)


Father appeals the family court’s denial of his motion to reinstate parent-child contact following a voluntary suspension of such contact due to an allegation of child sexual abuse. We hold that the court’s finding of sexual abuse by a preponderance of the evidence was insufficient to support an order effectively terminating father’s parental rights. We reverse and remand.


The case at the heart of this argument is Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994). There, the mother moved to gain custody of the parties’ two sons after the father was accused of abusing the boys. The family court transferred custody, which had been with the father for the previous six years, upon a finding of sexual abuse by a preponderance of the evidence, and the court conditioned father’s visitation upon his acknowledgement of the sexual abuse. We affirmed the court’s finding of abuse and the resulting transfer of custody, but we reversed the court’s visitation order because it “effectively terminated the father’s parental rights.” In so doing, we adopted the standard that, as a matter of due process, a court must find evidence of sexual abuse by clear and convincing evidence in order to terminate all contact between a parent and child. 


Here the family court  expressly concluded that the evidence presented did not reach the clear and convincing standard required to terminate father’s parental rights.  The dissent’s belief that Mullin v. Phelps should be overruled was not raised, briefed, or argued by any party.  We do not address this issue.


Johnson, J., joined by Justice Dooley, writes separately to stress that the case is governed by the doctrine of stare decisis. Recognizing with Justice Cardozo , that “when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or the social welfare, there should be less hesitation in frank avowal and full abandonment,” Justice Johnson concludes this case presents precisely the opposite scenario. Mere disagreement with how a case was decided—particular one of relatively recent vintage—is not a sufficient basis to deviate from a policy essential to certainty, stability, and predictability in the law. The dissenting judge may consider Mullin v. Phelps, to have been decided “in error,” but to advocate its reversal solely because he remains unpersuaded by its reasoning is to invite an endless cycle of decision and reversal should the next Court consider the abandonment of Mullin to have been “in error,” and the Court after that to conclude otherwise. The folly of such an approach is self-evident. Nothing has appeared over the last seventeen years indicating even remotely that Mullin has undermined the public welfare, wrought individual injustice, or impeded the administration of justice. Indeed, not one cogent reason has been produced to abandon a precedent grounded in fundamental due process and the compelling state interest in preserving the relational interests between parents and children.


Crawford, Supr. J., Specially Assigned, dissents from the application of a clear-and-convincing-evidence standard to decisions about parent-child contact in divorce and parentage cases. A higher standard of proof is constitutionally mandated in cases in which the state seeks to deprive an individual of a liberty interest so that the possibility of error is borne more heavily by the state. In disputes over custody and visitation between individuals, however, the higher burden simply shifts the possibility of error from one parent to another. Because the private interests are equally balanced, there is no compelling reason that one individual should more heavily bear the burden of error. It is time to reconsider the wisdom of the Mullin v. Phelps decision. It arose out of a factual context in which the claims of abuse were highly suspect. The constitutional principle has not found support in the decisions of other states. And, most compellingly, in cases in which a child’s word is offered against an adult’s, it can result in rulings which favor contact with a probable abuser over safety for children.

Ex parte Internet search by Judge prohibited.

Rutanhira v. Rutanhira, 2011 VT 113 (Skoglund, J.)


Father appeals an order awarding mother primary legal rights and responsibilities for the parties’ daughter based on the court’s conclusion that father exercised poor judgment in desiring to take his daughter to his birth country, Zimbabwe. The trip, planned for the summer of 2010, coincided with the World Cup in South Africa. Mother objected. She viewed the trip to Zimbabwe as far too dangerous for daughter. Though father wanted daughter to know her heritage, he ultimately acquiesced to mother’s wishes. Nevertheless, this was the issue upon which the family court based its award of legal custody to mother. The court reasoned that “[t]aking the child to an unstable place . . . would not be a wise idea” On appeal, father contends that the trial court abused its discretion by considering evidence outside of the proceeding, specifically a post-hearing internet search about Zimbabwe. We agree that the trial court erred in relying on evidence gathered outside the proceeding, which father did not have an opportunity to contest, and we reverse and remand for the family court to rehear this matter.


There are two concerns about judicial Internet searches. Reliability and permanence of information are constant concerns with Internet-based resources. See D. Tennant & L. Seal, Judicial Ethics & the Internet: May Judges Search the Internet in Evaluating & Deciding a Case?, 16 Prof. Law. 2, 14-16 (2005). In its decision, the court referred to a “sampling” of information the court had viewed on the Internet. This was not necessarily a source Father relied upon in 2009 when making his decision. We cannot determine whether the “sampling” of information the court obtained from these sites was exhaustive or selective. It is impossible for us to review the record given the dynamic nature of information on the Internet and the necessarily time-bound query that produced such articles. The articles examined by the court, as far as we know, spanned several years and are from sources whose record for accuracy is unknown.


Second, is the lack of notice and opportunity to be heard. A court cannot undertake an Internet search after the submission of a case on an issue material to that case and rely on information or evidence not properly introduced. In doing so, a court denies parties the opportunity to address the information and confront potentially harmful evidence. Even in the context of judicial notice, our Rules of Evidence demand that the parties receive “an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” V.R.E. 201(e). Other appellate courts have reached a similar conclusion when reviewing a trial court’s reliance on Internet searches undertaken after the close of the hearing. Here, the trial court conducted its own investigation, using this further investigation to determine the outcome of the case. Neither party could reasonably expect such additional fact-finding. Neither had an opportunity to test any of the evidence acquired through this investigation. It was error for the court to rely on this evidence.