Relief from judgment under Rule 60 is available only to parties -- even though movant did not have notice and opportunity to become a party.

 

 In Re Burchard Road Petition To Abandon Land Use Permit Denial, 2024 VT 51 (Neighbor, a party to the original act 250 proceeding who lives in New Jersey, did not receive notice of a request to abandon the Act 250 permit because the post office did not deliver a “notice to interested persons” mailed by the district commission to Neighbor’s Vermont street address.  The Environmental Court issued a final judgment and later denied Neighbor relief from judgment under Rule 60 -- as applied to Environmental Court and as affirmed by the Supreme Court-- because relief under Rule 60 is available only to a “party”.)

 REIBER, J. . Neighbor Myrna Nathin appeals the denial of her motion for relief from a judgment of the Environmental Division declaring an Act 250 land-use permit for an adjoining property to be abandoned. Neighbor argues that the Environmental Division should have vacated the order and reopened the abandonment proceeding because she was not provided with adequate notice of the petition to abandon the permit. We conclude that the Environmental Division properly denied neighbor's motion under Vermont Rule of Civil Procedure 60(b) and therefore affirm the decision below.

 Neighbor, whose property abuts a portion of the subject property, was granted party status in the 1990 permit proceeding filed a petition with the district commission to abandon the permit pursuant to 10 V.S.A. § 6091(b) and provided the district commission with a list of interested persons, including neighbor. In August 2022, the district commission declined to review the petition, reasoning the superior court had jurisdiction over the permit. The district commission sent copies of its decision to all interested persons and entities, including neighbor at the address that landowners provided. Landowners appealed to the Environmental Division and in September 2022 published public notice of the appeal in a local newspaper. Following proceedings in which neighbor did not appear, the Environmental Division entered a stipulated judgment and order on January 9, 2023, ruling that the permit was abandoned. No appeal was taken from that order.

  Nine months later, in October 2023, neighbor filed a motion for relief from judgment pursuant to Vermont Rule of Civil Procedure 60(b), asking the Environmental Division to "void" the January 2023 order and reopen the abandonment proceeding. Neighbor, who lives in New Jersey, asserted that she did not receive the notice mailed by the district commission to her Vermont street address because the post office does not deliver mail there.  In January 2024, the court denied neighbor's motion, concluding that she lacked standing to file a Rule 60(b) motion because she was not a party. See V.R.C.P. 60(b) (stating that upon motion, "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" (emphasis added)).

 As a party to the original permit proceeding, neighbor was entitled to receive notice of the abandonment petition. Act 250 Rule 38(D Neighbor's primary argument on appeal is that because the district commission's notice to her was ineffective, the Environmental Division was required by this Court's decision in In re Conway, 152 Vt. 526, 567 A.2d 1145 (1989), to vacate the January 2023 abandonment order and reopen the proceeding so that she could participate.

 However, we rejected this interpretation of Conway in In re White, 172 Vt. 335, 339, 779 A.2d 1264, 1268 (2001). There we emphasized that "Conway does not require the Board to void or revoke permits merely based on the inadvertent omission of an adjoining landowner from the list required on permit applications no matter when this oversight is discovered." Id. at 341, 779 A.2d at 1269 Here, as in White, the permit abandonment process had already become final when neighbor filed her Rule 60(b) motion seeking to reopen the abandonment order. Unlike in Conway, there is no suggestion that the lack of notice to neighbor was intentional. Instead, the record shows that landowners provided neighbor's name and Vermont address to the district commission, and the district commission sent notice of its decision declining jurisdiction to that address. There is no evidence that landowners knew the address would be ineffective. Most importantly, the district commission did not fail to adhere to its own rules or improperly delegate its discretion over who should receive notice. Just as Conway does not automatically require a permit to be voided or revoked when an adjoining landowner is inadvertently omitted from a permit application, nothing in Conway required the Environmental Division to vacate the abandonment order here.

 On its face, Rule 60(b) allows relief from judgment only to "a party or a party's legal representative." Consistent with this plain language, federal courts have recognized that "the general rule is that one must either be a party or a party's legal representative in order to have standing to bring any Rule 60(b) motion." Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1520 (11th Cir. 1987) (collecting cases). Neighbor never appeared in the Environmental Division when it considered landowners' petition to abandon the permit. Neighbor was not a party or the legal representative of a party to the Environmental Division proceeding, and therefore is not entitled to seek relief under the plain language of the rule.

 Neighbor claims that the January 2024 denial of her Rule 60(b) motion for lack of standing was contrary to the Rules of Environmental Court Proceedings and was inappropriate given the lack of formal notice in environmental appeals. Neighbor points to Environmental Rule 5(a)(2), which makes the Rules of Civil Procedure apply only "so far as applicable," and to Environmental Rule 1, which requires that the rules "be construed and administered to ensure summary and expedited proceedings consistent with a full and fair determination in every matter coming before the court." V.R.E.C.P. 1, 5(a)(2). Neighbor argues that unlike other civil cases, putative parties in Environmental Division proceedings do not receive a summons pursuant to Vermont Rule of Civil Procedure 4. Absent such an assurance of notice, neighbor argues, restricting Rule 60(b) to parties undermines the requirement of providing a "full and fair determination in every matter." V.R.E.C.P. 1. She asserts that "party status must be broadly interpreted in cases reaching a court without a Rule 4 summons." 

In short, Neighbor claims that party status for purposes of Rule 60(b) should be broadly interpreted in environmental appeals because putative parties do not receive notice consistent with Rule 4 in such proceedings.

 Party status in Act 250 proceedings is governed by statute and is limited to a list of specific individuals and entities. Neighbor's sweeping contention that nonparties should be allowed to file Rule 60(b) motions in any case where putative parties are not entitled to a Rule 4 summons would effectively allow anyone to intervene after judgment in any environmental appeal. This would ignore important principles of finality; create significant uncertainty over permitting decisions, leaving them open to attack for up to a year and possibly longer under Rule 60(b); and conflict with Act 250 and our precedent governing party status in such cases. For these reasons, we decline to adopt neighbor's proposed interpretation of who is a "party" for purposes of Rule 60(b) in an environmental case.

 Nothing in Environmental Rule 2 or 5 modifies Civil Rule 60 in environmental proceedings or renders the rule inapplicable to this case. The general statement in Environmental Rule 1 that "[t]he rules shall be construed and administered to ensure summary and expedited proceedings consistent with a full and fair determination in every matter coming before the court" does not eliminate the procedural requirements of the Civil Rules. A denial of relief for failure to comply with the plain terms of Rule 60(b) amounts to a "full and fair determination" of the matter because the party has received everything that they are entitled to under the rules. We therefore see no basis to disturb the decision below.

 Affirmed.

How Cited

  

SCOVT reverses, as an abuse of discretion, order vacating dismissal of complaint due to pending bankruptcy proceeding, holding the court had no legal basis to vacate the dismissal order under Rule 60 or otherwise, two years after it issued.

Hill v. Springfield Hospital and Emergency Services of New England, Inc., 2023 VT 23

CARROLL, J. In this interlocutory appeal, defendants challenge the civil division’s order granting plaintiff’s request to vacate its previous order dismissing her malpractice complaint. We agree that there was no legal basis for the court to grant such relief, and therefore reverse.

 After notification of bankruptcy proceedings, the court entered a “dismissal order” without prejudice to the Plaintiff’s right to have the order vacated, and the case reopened, if Plaintiff made application within thirty (30) days of the date of Bankruptcy Court removed the automatic stay.

Plaintiff moved to vacate, but more than thirty days after the bankruptcy case was closed.

The court granted plaintiff’s motion, stating that it was “persuaded that there was no legal or equitable basis to dismiss the action simply because one of the two defendants filed a bankruptcy petition.” The court stated that it had intended to simply stay the action and that dismissal would be unjust.

 The court denied defendants’ request for reconsideration, reasoning that “[w]hether pursuant to the court’s inherent authority to vacate unlawful orders, or pursuant to V.R.C.P. 60(b)(4) or (6), the court is duty bound to vacate the unlawful dismissal order because failure to do so would work a substantial injustice by unlawfully denying plaintiff’s right to seek redress for her alleged injuries."

This Court accepted the interlocutory appeal on the question whether the civil division had a legal basis to vacate the 2019 dismissal order V.R.A.P. 5(b)(6)(B).  We conclude that it did not, and reverse.

 

First, plaintiff failed to comply with the terms of the dismissal order. By law, the bankruptcy court’s decision closing the bankruptcy case operated to remove the automatic stay. Under the plain terms of the dismissal order, plaintiff had thirty days from that date to move to reopen the case. She did not do so.

 

The trial court had no inherent authority independent of Rule 60 to modify or vacate a final judgment. Once the twenty-eight-day time period set forth in Rule 59 elapsed, relief is only available if one of the conditions in Rule 60 is satisfied. Kotz v. Kotz, 134 Vt. 36, 38, 349 A.2d 882, 884 (1975); see also Reporter’s Notes, V.R.C.P. 60 (“The rule is intended to provide the sole means of obtaining relief from a judgment after the time for a motion under Rule 59 has run.”). Having failed to follow that procedure, plaintiff’s sole avenue of relief was Vermont Rule of Civil Procedure 60.

 

In this case, plaintiff’s motion was filed more than a year after the judgment, so she is not entitled to relief under subdivisions (b)(1), (2), or (3).  Thus, even assuming the 2019 dismissal order qualified as a “mistake” within the meaning of Rule 60(b)(1), that provision is of no aid to her.

 

Plaintiff does not claim that she is entitled to relief under subdivision (b)(5), nor does that provision appear to fit the circumstances in this case. We accordingly assess whether the trial court could properly grant relief under Rule 60(b)(4) or (b)(6).

 

Plaintiff argued below that relief was available under Rule 60(b)(4) because the 2019 dismissal order was contrary to law and therefore void when it was entered.  Whether it was unlawful for the civil division to dismiss her entire case in response to Springfield’s notice of bankruptcy is not the issue before us.  The question certified for review is whether the court had a valid reason to vacate the dismissal. We conclude that the civil division had jurisdiction to enter the dismissal order, meaning that it was not “void” within the meaning of Vermont Rule of Civil Procedure 60(b)(4), and that plaintiff demonstrated no other valid basis to challenge the order two years after it was issued.

A judgment is void within the meaning of Rule 60(b)(4) “only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” In re C.L.S., 2020 VT 1 ¶ 17.  The civil division had jurisdiction, concurrent with the bankruptcy court, to determine the applicability of the automatic stay to plaintiff’s case. Klass v. Klass, 831 A.2d 1067, 1071 (Md. 2003).  Plaintiff had notice and multiple opportunities to object to or remedy the dismissal order, and we see no basis to conclude that the order was inconsistent with due process such that it was void for purposes of Rule 60(b)(4).  The argument that the order violated the automatic stay is not grounds for relief under Rule 60(b)(4).

Rule 60(b)(6) allows the trial court to relieve a party from a final judgment for any reason beside those set forth in the first five sections of the rule, as long as the request for relief is made within a reasonable time.  The record is clear that plaintiff’s own lack of diligence, not the dismissal order or defendants’ conduct, is the reason for her situation. It was therefore an abuse of discretion for the court to grant plaintiff’s motion to reopen the case under that subdivision of the rule.

 

The civil division did not have inherent authority or any basis under Rule 60(b) to vacate the dismissal order.

 

 Reversed.

How cited

SCOVT NOTE: The Court expressly did not validate the dismissal order in question as a lawful response to the automatic stay. 

In another context, the Court characterized this type of dismissal without prejudice to a time-limited motion to reopen as “procedurally unorthodox,” stating “litigants and courts would be well advised not to follow its model."  Re Purvis Nonconforming Use, 2019 Vt 60 ¶ 14.

 

Rule 60(b)(5) does not apply to require relief from judgment which has been “effectively overruled” by newer precedent.

 

  In re Benoit Conversion Application , 2022 VT 39 (filed 8/19/2022)

 

COHEN, J. The Benoits seek to set aside a 2008 judgment under Vermont Rule of Civil Procedure 60(b)(5). They contend that the decision was effectively overruled by a later case involving different parties. The Environmental Division denied their request and we affirm its decision.

In the 2008 Hayford decision the environmental court ordered the Hayfords and the Benoits to stop using the rear building as a residential unit and imposed fines. On appeal this Court found it unnecessary to address argument that the enforcement action should be barred by the fifteen-year statute of limitations in 24 V.S.A. § 4454(a) because the Court agreed with the environmental court there had been a fresh violation in 1998.

Eleven years later, in, in re 204 N. Ave., 2019 VT 52, ¶ 3, 210 Vt. 572, 218 A.3d 24., the Court held that the statute of limitations in § 4454(a) does not allow a municipality “to pursue use violations as long as they continue.” Id. ¶ 7.

Based on in re 204 N. Ave., the Benoits moved to set aside the Hayford decision. The Environmental Division denied the parties’ request, finding no grounds to set aside the decision under Rule 60(b)(5).
The court concluded that Hayford was decided and affirmed on grounds independent of the holding in 204 North Avenue.

On appeal, the Benoits argue that they are entitled to relief under Rule 60(b)(5) because 204 North Avenue “effectively overruled” Hayford. They assert the Court rejected the notion that use violations are analyzed as continuing or recurring violations. They contend the asserted holding of 204 North Avenue should be retroactively applied and Hayford should be set aside.

The trial court has discretion in ruling on a Rule 60(b) motion and its decision is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused.)). The Benoits fail to show an abuse of discretion here

First, we reject the argument that 204 North Avenue “effectively overruled” Hayford. Our decision in Hayford did not rest on a “continuing use” theory. We expressly declined to reach that alternate rationale offered by the trial court and affirmed the trial court’s decision on a separate and independent ground. Hayford, 2008 VT 36, ¶ 11.

Even assuming arguendo that Hayford was “effectively overruled,” that would not entitle the Benoits to relief under Rule 60(b)(5). That rule provides relief from a judgment where “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” V.R.C.P. 60(b)(5).

Rule 60 (b)(5) “does not apply merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.” 11 C. Wright & A. Miller, Federal Practice and Procedure Civil § 2863 (3d ed. 2022); see also Reporter’s Notes, V.R.C.P. 60 (indicating that V.R.C.P. 60 is “substantially identical to Federal Rule 60”); Reporter’s Notes, V.R.C.P.1 (“Federal cases interpreting the Federal Rules are an authoritative source for the interpretation of identical provisions of the Vermont Rules.”).

This approach promotes the finality of judgments, which is “fundamental to our judicial system.” Comfort v. Lynn Sch. Comm., 560 F.3d 22, 26 (1st Cir. 2009); For that reason, courts recognize that “a case cannot be re-opened simply because some new development makes it appear, in retrospect, that a judgment on the merits long since settled was brought about by judicial error.” Id. (citing Hoult 7 v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995) (explaining that incorrectly decided point of law, without more, cannot provide ground for relief from final judgment) (citing cases).

Mindful of these principles, the language at issue here in Rule 60(b)(5) “is limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion.” 11 Wright & Miller, supra, § 2863 “The mere emergence of controlling precedent in some other case that shows the incorrectness of the prior judgment” does not suffice. Comfort, 560 F.3d at 27;

Even assuming arguendo that Hayford rested on a “continuing use” theory, the rejection of that theory in a later, unrelated case would not entitle the Benoits to the relief they seek. “In the absence of . . . a direct connection [between the two cases], ‘a change in applicable law does not provide sufficient basis for relief.’ ” Comfort, 560 F.3d at 27 (quoting Lubben, 453 F.2d at 650).

The Benoits do not squarely argue that they are entitled to relief under the third prong of Rule 60(b)(5), which states that relief from judgment may be appropriate “where it is no longer equitable that the judgment should have prospective application.”. Even if the Benoits did raise this argument on appeal, we would reject it. The trial court plainly found that there was no clear showing of a grievous wrong here that would warrant setting aside the 2008 judgment. In other words, there was no equitable basis for doing so, particularly as the continuing-use theory was not reached in Hayford.

There is no basis to disturb this discretionary determination on appeal. The court did not err in denying the Benoits’ request for relief from judgment.

Affirmed.

SCOVT NOTE. For a case confirming that Rule 60(b)(5) specifically contemplates relief only from "prospective application" of a judgment because of intervening change in law see Agostini v. Felton, 521 U.S. 203, 238–39 (1997) (ongoing injunctive relief based on a decision that been “effectively overruled’ was inequitable under Rule 60(b)(5)). In Aguilar the Court noted that “ Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6), the only remaining avenue for relief on this basis from judgments lacking any prospective component.”

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.

How cited

SCOVT reverses denial of joint motion to modify final property division order; such relief is authorized in limited circumstances under Rule 60

Sandra L. Penland (Warren) v. John W. Warren, Jr., 2018 VT 70 

REIBER, C.J. Husband appeals the trial court’s denial of husband and wife’s joint motion to modify their final divorce order. The issue in this case is whether the trial court has jurisdiction under Vermont Rule of Civil Procedure 60(b)(6) to modify a property-division order based on the agreement of the parties after the divorce order has become absolute. We hold the court does have jurisdiction, and accordingly we reverse and remand.

The court declined to exercise its discretion because  it found, as a matter of law, that it lacked jurisdiction to modify the property division. Whether the court has authority to exercise its discretion is a legal issue that we review de novo.

Under Rule 60(b), “the court may relieve a party . . . from a final judgment, order, or proceeding” for several enumerated reasons, such as mistake, V.R.C.P. 60(b)(1), and fraud, V.R.C.P. 60(b)(3). Rule 60(b)(6) authorizes relief for “any other reason justifying relief from the operation of the judgment.” The subsection is available only where the other criteria under Rule 60(b) do not apply.

Rule 60(b)(6) is available and appropriately used to provide relief from a final property-division order where “extraordinary circumstances” justify relief “to prevent hardship or injustice.” Wilson v. Wilson, 2011 VT 133, ¶ 5, 191 Vt. 560, 38 A.3d 50 (mem.) (quotations omitted). This opportunity for relief applies to final property divisions in divorce orders as it does to other final orders and judgments. See id. ¶¶ 5-6 (affirming that court can modify divorce order under Rule 60(b)(6) only if there are “unusual circumstances” that “would warrant relief from a judgment generally” (quotations omitted))

In considering whether such circumstances exist here, the court should note that the parties have agreed to a stipulated modification. This is not a situation where one or both parties seek to continue litigation past its end. See Richwagen, 153 Vt. at 4, 568 A.2d at 421 (stating “the grounds for relief authorized under Rule 60(b)(6) are broad” but limited by need for “certainty and finality of judgments so that litigation can reach an end”). Rather, this situation is an attempt to respond in a mutually beneficial way to emerging circumstances. Although the court has discretion to decline to accept a stipulated modification, it is more likely that modification under Rule 60(b)(6) is appropriate where the parties have stipulated to an agreement.

SCOVT reverses denial of Rule 60(b) motion after case dismissed for failure of plaintiff’s lawyer to attend status conference.

Ying v. Heide, 2013 VT 81 (13-Sep-2013)

ROBINSON, J.   The question in this case is whether the trial court’s dismissal of plaintiff’s eviction action on account of her lawyer’s failure to attend a scheduled status conference can withstand a motion to set aside the judgment pursuant to Vermont Rule of Civil Procedure 60(b) on the facts of this case.  We conclude that it cannot and reverse.

 Rule 60(b)(1) allows the court to relieve a party of a final judgment order for “mistake, inadvertence, surprise, or excusable neglect.”  The trial court has discretion in deciding a Rule 60(b) motion and we will affirm “unless the record indicates that such discretion was abused.”  Lyddy v. Lyddy, 173 Vt. 493, 497, 787 A.2d 506, 513 (2001) (mem.).  The question before us now is whether plaintiff has established the requisite “excusable neglect” to warrant reopening a final judgment.

In the context of a late filing, the U.S. Supreme Court has described “excusable neglect” as an equitable determination, “taking account of all relevant circumstances surrounding the party’s omission.”  Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).  The excusable neglect standard is intended to encompass acts of negligence, but does not reach “every instance of an inadvertent or negligent omission.”  Id. at 394.  This Court has incorporated the Pioneer factors to define excusable neglect for purposes of extending the appeal period under Vermont Rule of Appellate Procedure 4.  In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60, 838 A.2d 98

We acknowledge that, as the trial court concluded, plaintiff’s explanation for not appearing at the status conference was not compelling.  Plaintiff’s lawyer failed to properly calendar the hearing and instead relied on an online calendar that expressly excluded the court in which this case was pending.  This error is not the kind of “excusable neglect” that would warrant extension of a missed appeal deadline. 

Given the law’s preference for adjudication on the merits, we conclude that the trial court’s denial of plaintiff’s motion to set aside the judgment exceeded its discretion.    Plaintiff's counsel sought to remedy the situation relatively quickly and defendant would not have suffered significant prejudice through the reinstatement of plaintiff’s claims and defendant’s counterclaims within weeks of the court’s dismissal.  There is no suggestion here that plaintiff or her lawyer acted in bad faith.  There is no evidence that plaintiff herself, as opposed to her lawyer, was responsible for the failure.See Pioneer Inv. Servs., 507 U.S. at 395 (explaining that relevant factors in determining “excusable neglect” include danger of prejudice, length of delay, and good faith of party claiming excusable neglect).   Given these factors, we cannot conclude that the trial court acted within its discretion in declining to reopen the case for consideration on its merits.

 REIBER, C.J., dissenting.   Though plaintiff may have suffered as a result of her attorney’s deficient performance, calling into question the trial court’s necessary and reasonable exercise of discretion is not the appropriate response or remedy.  In my view, this Court ought to affirm the trial court’s decision to deny plaintiff’s motion for relief from judgment.    I am authorized to state that Justice Burgess joins this dissent.

Time limit for relief from default not waived by agreement that preserved rights.

Pierce v. Vaughan, 2012 VT 5 (mem.)

This case raises the question of whether a court may grant a motion for relief from a default judgment  for mistake or inadvertence beyond the one-year limitations period of Vermont Rule of Civil Procedure 60(b), where the parties reached an agreement after the default judgment had entered.  Because the  agreement was -- as plaintiffs’ attorney admitted -- specifically designed to allow defendants to make a motion to set aside the default judgment, the trial  court considered the present case to involve  equitable considerations not covered by the one year limit for clause (1), (2), or (3).  However, the default judgment was entered due to mistake or inadvertence, and the subsequent agreement did not relieve the moving party of the burden to seek timely relief from the judgment.  Therefore, we conclude that the trial court’s grant of relief was in error.

Here, defendants rely on Rule 60(b)(6), which is an omnibus clause providing that “the court may relieve a party . . . from a final judgment, order, or proceeding for . . . any other reason justifying relief from the operation of the judgment.”  Rule 60(b)(6) is not to be used as a substitute for one of the first five subsections of V.R.C.P. 60(b).  Motions seeking relief under clauses (1), (2), and (3) require that the motion be filed “not more than one year after the judgment, order, or proceeding was entered or taken.”  V.R.C.P. 60(b).  If clause (6) were permitted to encompass grounds for relief that fall under clause (1), (2), or (3), then it would supply a backdoor to circumvent the one-year time limit.

In this case, defendants’ basis for relief from the judgment  was that they had attempted to respond to the claims brought against them, but  the default was entered  due to the failure to file this response with the court.  This most naturally falls within clause (1), which covers “mistake, inadvertence, surprise, or excusable neglect.”V.R.C.P. 60(b). Plaintiff’s later agreement that defendants were not precluded “from being able to raise whatever defenses they may have to plaintiffs[’] claims in any other actions between the parties” was not an agreement to relieve defendants of the default judgment against them; nor was it an agreement to excuse the limitations period for seeking relief from that judgment. Consequently, we find no support for the trial court’s decision to grant defendant’s motion under Rule 60(b)(6).