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 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.