SCOVT affirms denial of motion to intervene, because -- on de novo review-- the motion was untimely.

State v. Quiros, 2019 VT 68 [Filed October 4, 2019]

CARROLL, J. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appeal an order denying their motion to intervene in the State's enforcement action brought against defendants. We conclude that, under a de novo standard of review, the intervention was untimely, and because untimeliness is a threshold issue under both Rule 24(a) and (b), we affirm.

Intervenors moved under Vermont Rule of Civil Procedure 24(a) and (b) to intervene in this action. Intervenors sought the "full recovery of any judgment obtained in this action" and the "[d]isgorgement and restitution of all earnings, profits, compensation and benefits." They also sought punitive damages The superior court denied the motion to intervene without reference to its timeliness.

A trial court must grant a motion to intervene as of right if it is (1) timely; (2) the intervenor has "an interest relating to the property or transaction" that is the subject of the underlying action; (3) the intervenor would be impaired or impeded in his or her ability to protect that interest depending on the outcome of the action; and (4) the intervenor's interest is not adequately represented by the existing parties. V.R.C.P. 24(a). Permissive intervention is available if the motion is (1) timely and (2) the prospective intervenor's "claim or defense and the main action have a question of law or fact in common." V.R.C.P. 24(b). Vermont Rule 24 is "substantially identical to Federal Rule [of Civil Procedure] 24" with "minor modifications" that are of no consequence to our analysis here. Reporter's Notes, V.R.C.P. 24.

We review the denial of a motion to intervene as of right de novo. In re GMPSolar-Richmond, LLC, 2017 VT 108, ¶ 19, 206 Vt. 220, 179 A.3d 1232 .

However, we review discretionary decisions of trial courts "under an abuse of discretion standard of review." HSBC Bank USA N.A. v. McAllister, 2018 VT 9, ¶ 8, 206 Vt. 445, 182 A.3d 593. We therefore review the denial of a motion for permissive intervention for an abuse of discretion. Helm. v. Helm, 139 Vt. 225, 227, 424 A.2d 1081, 1082 (1981).

Because the timeliness of a motion to intervene is "a matter within the discretion of the court," normally we review the trial court's ruling on timeliness for an abuse of discretion. Ernst v. Rocky Road, Inc., 141 Vt. 637, 639, 450 A.2d 1159, 1160 (1982).

However, when — as here — a trial court denies a motion to intervene but makes no mention of the motion's timeliness, we are left without a ruling to review for an abuse of discretion. In such a case, if there are sufficient facts to decide the issue of timeliness within the record — and assuming neither party is seeking a remand to establish a disputed issue of material fact — then, in accordance with four federal circuit couts of appeal, we review timeliness de novo.

When a motion to intervene is filed, the timeliness requirement under Rule 24(a) and (b) is a threshold question. NAACP v. New York, 413 U.S. 345, 365 (1973) ("Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of [Federal Rule 24] that the application must be `timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.").

An intervenor bears the burden of meeting all of the requirements for intervention, including timeliness. See Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990). The timeliness of a motion to intervene is assessed using a totality-of-circumstances analysis. Ernst, 141 Vt. at 640, 450 A.2d at 1160.

We have identified four factors that may be considered in assessing timeliness: (1) possible harm to plaintiffs; (2) an intervenor's ability to have sought intervention sooner; (3) the progress of the case; and (4) the availability of other means to join case. Shahi v. Madden, 2010 VT 56, ¶ 10, 188 Vt. 142, 5 A.3d 869.

Here, intervenors did not move for intervention until May 2018, more than two years after the complaint was filed in April 2016. Based on the facts and circumstances of this case, we conclude that intervenors have failed to carry their burden to show that they sought intervention in a timely manner. We therefore affirm.

Appeals. Court rules prospectively that CHINS decision is final order that must be immediately appealed, even though disposition hearing is still pending.

  In re DD, 2013 VT 79

Vermont's child abuse and neglect proceedings have a bifurcated nature. See In re L.S., 147 Vt. 36, 38, 509 A.2d 1017, 1019 (1986).   First, there is a merits adjudication during which the State must prove the allegations in the CHINS petition, and the court must find by a preponderance of the evidence whether the child is abused or neglected. See 33 V.S.A. § 5315. Second, there is a disposition hearing, which decides the terms of the child's placement and protection. Id. § 5318(a). In this case, a merits decision was entered on July 25, 2012, a disposition order was entered on October 11, 2012, and Father filed a notice of appeal on November 8, 2011, seeking to appeal both the merits and the disposition orders. The timeliness of father's appeal depends on two questions: whether a CHINS merits decision is a final appealable order and whether failure to appeal that decision within thirty days forecloses the right to later challenge it. We conclude that the merits decision is a final order and that failure to bring an appeal of that order within thirty days bars subsequent challenges to the order. Under the circumstances of this case, however, we apply our decision prospectively and reach the merits of father's appeal.

Generally, the test for finality is whether an order has disposed of all matters before the court by settling the rights of the parties. See In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002); In re Petition No. 152 by Cent. Vt. Ry., Inc., 148 Vt. 177, 178, 530 A.2d 579, 580 (1987). Although a CHINS determination does not permanently resolve the child-neglect proceeding, finality in juvenile proceedings is measured differently from other types of cases.  Because the policy of resolving the child's status as quickly as possible, we hold the merits adjudication is a final appealable order.  In this case, father appealed beyond the thirty-day time frame, and therefore his appeal of the CHINS decision was untimely.

Father argues that this Court has routinely allowed appeals of the merits after disposition, and that he should not be punished for relying on those cases. We recognize that our jurisprudence regarding the appropriate time to appeal CHINS determinations has not been consistent and that the obligation to immediately appeal the decision was not evident. In these circumstances it would be fundamentally unfair to foreclose father from appealing the merits decision where important rights are at stake. See In re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (reaching merits of parent’s untimely appeal of termination order given important rights at stake). We, therefore, apply our decision prospectively only, and reach the merits of father's appeal.

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).

Untimely appeal. Appeal period, tolled once by a motion for new trial, cannot be tolled again by a motion to “reconsider” under Rule 59(e).

Fagnant v. Foss, 2013 VT 16A (mem.) (August 30, 2013) (on reargument).
A motion to reconsider an order disposing of a time tolling post-trial motion of the kind enumerated in Rule 4(a)(4) does not again terminate the running of the time for appeal.

This Court's March 15, 2013 opinion is withdrawn. The appeal is dismissed as untimely filed.

Fagnant v. Foss, 2013 VT 16 (March 15, 2013)
Robinson J. Plaintiff appealed after the court denied plaintiff’s motion to reconsider the denial of plaintiff’s motion for new trial. Defendant contends the appeal is untimely. Although a timely motion for new trial terminates the running of time for the appeals period, defendant argues that once a motion for new trial is denied, then the full time for filing a notice of appeal begins to run again, unaffected by defendant’s later motion to reconsider. We hold plaintiff’s appeal was timely filed.

A “motion to reconsider” is not expressly recognized in the Vermont Rules of Civil Procedure. The Court will treat a motion to reconsider as a motion under V.R.C.P. 59(e) that terminates the running of the appeal period.when the timing and content of the motion to reconsider indicate that it was, for all intents and purposes, a motion to alter or amend. Although Plaintiff’s motion for reconsideration here was directed at the court’s denial of a Rule 59 motion, rather than at its initial judgment, it was essentially a motion to alter or amend, and the appeal period did not begin to run again until the court ruled on plaintiff’s motion to reconsider. Plaintiff’s appeal was timely filed.

Statute of limitations not tolled by estoppel or acquiescence.

Beebe v. Eisemann, 2012 VT 40 (mem.)

Plaintff appeals from the trial court's dismissal of his medical malpractice action for failing to satisfy the applicable statute of limitations.  Plaintff argues that the Eisemann defendants are equitably estopped from invoking the statute. We affirm.

In  Fercenia v. Guiduli, 2003 VT 50, ¶ 8, 175 Vt. 541, 830 A.2d 55 (mem.) we held that claims of a plaintiff who filed complaint within one day of the expiration of the limitations period, secured a waiver of service within sixty days, but failed to file that waiver in court within sixty days of filing the complaint were barred by statute of limitations. 

All parties agree that the limitations period for plaintiff’s malpractice claims pursuant to 12 V.S.A. § 521 was due to expire on October 9, 2009.  By letter dated September 16, 2009, plaintiff’s counsel proposed to Dr. Eisemann’s counsel and other potential defendants a “time out” agreement, tolling the statute of limitations for ninety days so the parties could pursue settlement.  Although Dr. Eisemann signed off on the agreement, not all of the defendants did.     As a result, plaintiff filed a summons and complaint on October 7, 2009 against all of the defendants in the trial court.  On October 15, 2009, plaintiff’s counsel sent a letter to the defendants’ lawyers informing them that a summons and complaint had been filed in the matter, and requesting that their clients sign and return acceptances of service.  In this letter, plaintiff’s counsel requested that the acceptances be returned at defendants’ “earliest opportunity,” but stated that he would not file the acceptances with the court without notice “so that this lawsuit will not be open to public inspection.” Plaintiff was required to file any waivers of service within sixty days of filing his complaint, December 6, 2009. 

Counsel for Dr. Eisemann signed the acceptance of service on October 20, 2009, but did not return the acceptance to plaintiff’s counsel on January 13, 2010. 

The trial court dismissed the complaint , viewing plaintiff’s request that defendant voluntarily "accept service" as a request for "waiver of service" of summons pursuant to V.R.C.P. 4(l) that was untimely filed.

On appeal, plaintiff does not argue that he legally satisfied the statute of limitations, but argues that equitable estoppel precludes defendant from invoking the statute of limitations.  Specifically, plaintiff argues that “estoppel by acquiescence” should have prevented Dr. Eisemann from asserting the statute of limitations because he claims Dr. Eisemann was aware that the parties were operating under a de facto agreement to ignore the time period within which plaintiff was to file the waiver of service, and, in effect, to toll the statute of limitations indefinitely while the parties negotiated.

Estoppel-by-acquiescence arises where the party being estopped is silent in the face of a duty to speak.  Assuming that estoppel-by-acquiescence is a valid theory, we affirm the trial court’s ruling because Dr. Eisemann was under no “duty to speak” at any time prior to the expiration of plaintiff’s deadline for filing the waivers.  He had no duty to affirmatively remind plaintiff to secure and file the acceptance within the period prescribed by the Rules of Civil Procedure. Plaintiff’s failure to enter into a tolling agreement, timely file Dr. Eisemann’s waiver of service, seek judicial relief from the applicable deadlines, or effectively serve Dr. Eisemann within the limitations period via other means cannot be cured by Dr. Eisemann’s silence.

[Filed 18-Jun-2012]

Arbitration in absentia confirmed. Untimely challenge.

UniFirst Corp. v. Junior’s Pizza, Inc., 2012 VT 13 (mem.)

This is an appeal by defendant Junior’s Pizza, Inc. from a superior court decision confirming an arbitration award in favor of plaintiff UniFirstCorporation. The trial court held that Junior’s waived its right to object to arbitration by failing to challenge the award within thirty days of receiving notice. Junior’s appeal argues that it did not waive its right to object to the arbitration award, and that UniFirst was required to petition to compel arbitration prior to engaging in arbitration without Junior’s participation. We affirm.

Under the Vermont Arbitration Act (VAA), 12 V.S.A. §§ 5651-5681, we must confirm an arbitration award unless grounds are established to vacate or modify it. Although Junior’s has not moved to vacate the arbitration award, it objected to the award in opposition to UniFirst’s motion to confirm. As an attempt to vacate the arbitration award, Junior’s objection is untimely. Under the VAA An application to vacate an award shall be made within 30 days after delivery of a copy of the award to the applicant,12 V.S.A. § 5677(c). Junior’s waived any objections it may have had by failing to seek a vacatur within 30 days. For this reason, the superior court correctly granted summary judgment for UniFirst.

In any event, Junior’s objection is groundless. UniFirst was not required to petition to compel Junior’s to arbitrate before proceeding with arbitration in Junior’s absence. The Commercial Arbitration Rules of the AAA. Rule 29 provides that the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement The VAA provides that “arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear.” 12 V.S.A. § 5666. Thus, an arbitration hearing may proceed without the participation of an unwilling party. There is no rule requiring a party to compel an unwilling adversary to participate in arbitration.

Worker’s Compensation appeal: wrong forum in time; right forum too late.

Worker’s Comp. appeal to superior court defeated because Commissioner certified only questions of law. Mistake of forum not grounds for late appeal. Stoll v. Burlington Electric, 2009 VT 61 (Skoglund, J.) (Dooley, J., dissenting.)

Employee appeals the superior court’s dismissal of his workers’ compensation appeal for lack of jurisdiction. We affirm.

Employee further asks that we grant his motion for leave to file an untimely direct appeal from the Commissioner’s decision. We deny this motion.

The Commissioner certified two questions to the superior court: 1. Whether the Superior Court has jurisdiction to hear this appeal from the Department of Labor’s decision granting Summary Judgment, where no facts were disputed by the parties for the purpose of the summary judgment motions; and 2. Whether the Occupational Disease Act’s five year statute of repose bars Claimant’s claim for alleged work-related asbestosis disease.

The superior court’s order granting summary judgment for the insurance companies on jurisdictional grounds was appropriate because both certified questions presented pure questions of law. Section 671 does not authorize the certification of questions of law to the superior court but only questions of fact or mixed questions of fact and law.

Moreover, we decline to exercise our discretion under 21 V.S.A. § 673 to allow employee to file a direct appeal of the Commissioner’s order with this Court.

Dooley, J. dissents from the majority’s refusal to allow a direct appeal, and in its failure to recognize that a possible question of fact permits appeal to superior court on all issues, including preliminary legal issues. In Justice Dooley’s view the statute creates alternative appeal routes. If the losing party is satisfied with the fact-findings, review is by the Supreme Court on the record made before the Commissioner and under a limited standard of review. If the party is not satisfied with the Commissioner’s fact finding, the party may appeal to the superior court for “trial by jury” and review of questions of “fact . . . and fact and law.” 21 V.S.A. § 671. A claimant can raise pure legal issues in a superior court appeal as long as the claimant has also raised factual issues.

Here the employee committed to an appeal to the superior court believing that the appeal was controlled by facts—that is, the cause and nature of his disability. However, ignoring the employee’s specification of the issues, the Commissioner certified pure questions of law only. In these circumstances, Justice Dooley says the Court has discretion to take this appeal by virtue of 21 V.S.A. § 673, and should allow the late appeal to the Supreme Court so that employee is not denied access to a court because of a mistake in choice of forum.