SCOVT affirms denial of motion to enlarge the time to file a notice of appeal; Board did not abuse its discretion in holding that attorney’s failure to notify the Board of his new address was not excusable neglect.

In re Grievance of Edward Von Turkovich, 2018 VT 57 [filed 5/25/2018]

REIBER, C.J. Grievant Edward von Turkovich appeals the decision of the Vermont Labor Relations Board denying his motion to enlarge the time for him to file a notice of appeal. We affirm.

After filing a grievance with the Board on behalf of employee and opposing the employer’s motion to dismiss, employee’s attorney moved his office, notifying the Post Office of his new address —but not the Board, required by Board rules. The Board sent its decision dismissing the grievance to the attorney, return-receipt-requested. The Post Office sent it back to the Board with the attorney’s new address. By the time the attorney got the decision, more than 30 days had passed since the dismissal.

Because the attorney failed to update his mailing address with the Board in a timely manner, grievant did not receive notice of the Board’s order within the thirty-day appeals window. Applying the Pioneer test articulated by the United States Supreme Court, we agree with the Board that the factors of delay, prejudice, and good faith weigh in favor of grievant. But our primary focus must be the reason for the delay. The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect.

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.

Appeal untimely. Being away from mail during vacation or otherwise failing to open mail is not excusable neglect justifying extension of time for appeal. Extension of time for late “receipt’ of order under V.R.A.P. 4 unavailable because notice was “received” when order arrived in mailbox, not when lawyer looked in the mailbox.

Coles v. Coles 2013 VT 36 (Burgess, J.)

Father challenges the trial court’s denial of his motion to reopen the time in which to file an appeal from a maintenance and child support order. He asserts that his motion was timely under Vermont Rule of Appellate Procedure 4(c). We affirm.

Counsel failed to prove that he did not receive notice of the court’s decision within twenty-one days, and thus failed to meet the threshold requirements for relief under V.R.A.P.4(c), which provides:

In any civil action, the superior . . . court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 90 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal. 

(emphasis added.)

The court’s docket entries indicate that an order was mailed to the parties on Monday, March 14, 2011, twenty days after entry of the order. Counsel was on vacation beginning Thursday, March 17, 2011,  and returned to work on Monday, April 4, 2011. He indicated that the mail arrived during his absence and the thirty-day appeal period had expired by the time he opened his mail. Counsel did not offer any evidence as to when the notice actually arrived in the mailbox. Instead, counsel argued only that he “received” the order when he opened his mail.

This approach would obviate our jurisdictional time limits, and it would not serve the strong interest in finality of judgments. The rule is not designed to allow the trial court to reopen the time for appeal because an attorney has not opened his or her mail. Instead we hold the “receipt” of notice contemplated under Rule 4(c) is receipt in a party’s mailbox.

The delay was not due to excusable neglect under Rule 4(d). Jurisdictional time limits do not and cannot depend on the vagaries of an attorney’s vacation schedule. Being away from delivered mail during vacation or otherwise failing to open mail, without more, is not excusable neglect. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838 A.2d 98 (internal office procedure breakdown not excusable neglect as a matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (lawyer’s vacation and internal office procedure breakdown not excusable neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule not excusable neglect).