SCOVT affirms denial of Rule 60 motion as untimely, because underlying order was final even though it expressly remained subject to a motion to reopen.

In re Purvis Nonconforming Use , 2019 VT 60 [filed 8/30/2019]

ROBINSON, J. Luke Purvis appeals the Environmental Division’s denial of his motion for relief under Vermont Rule of Civil Procedure 60(b)(1) and (2). He argues that his motion is not time-barred because the order from which he seeks relief was not actually a final judgment entered more than a year before he filed his motion. We affirm.

Rule 60(b)(1) authorizes relief from judgment for "mistake, inadvertence, surprise, or excusable neglect," and 60(b)(2) allows relief from judgment on account of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial." A motion under Rule 60(b)(1) or Rule 60(b)(2) must be filed "not more than one year after the judgment, order, or proceeding was entered or taken." V.R.C.P. 60(b).

The parties filed a Stipulated Order, which the court entered on September 26, 2016, dismissing the matter without prejudice to the rights of either party to request that the Court reopen it.  The Order gave the parties until August 1, 2017 to file a Motion to Re-open. If no such filing is made, the “ the appeal period for said decision shall be deemed to have expired."

In March of 2018, Purvis moved for relief from the Stipulated Order pursuant to Vermont Rule of Civil Procedure 60(b)(6). Purvis  argues the September 2016 Order was not  final for purposes of calculating the one-year period for filing a Rule 60(b)(1) and (2) motion, because  the Order remained subject to a motion to reopen until August 2017.

 In determining whether an order is final, "our test [is] that a judgment is final when it makes a final disposition of the subject matter" such that there are no "outstanding issues to be decided." Russell v. Russell, 157 Vt. 295, 301, 597 A.2d 798, 802 (1991); see also Gregoire, 2015 VT 36, ¶ 19 ("A final order is one that ends litigation on the merits or conclusively determines the rights of the parties, leaving nothing further for the court to do but execute the judgment."). 

The Stipulated Order disposed of the issues in the case, leaving none outstanding to be decided. While it left the parties a window of time in which they could move to reopen, it left nothing for the court to do.  The parties expressly structured the Stipulated Order as a final order effective in September 2016 in the event that no party sought to reopen it. 

Accordingly, we conclude the Stipulated Order was a final order when entered on September 26, 2016.

The Stipulated Order was procedurally unorthodox, and litigants and courts would be well advised not to follow its model. Nonetheless, the provision clearly signifies the parties’ intent, reflected in the court’s Order, that in the absence of a filing by August 1, 2017 the Order should be deemed final as of September 26, 2016.

 Given this conclusion, the Environmental Division was correct in holding motions under Rule 60(b)(1) and (2) were untimely because they fell outside of the one-year deadline.

The court did not err in denying Purvis’s motion to reconsider.

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