Fagnant v. Foss
82 A.3d 570
Vt.2013Background
- Jury returned a verdict for defendant after a low-impact auto accident; judgment entered 9/26/2011 in favor of Foss.
- Fagnant timely filed a Rule 59 motion for a new trial on 10/7/2011; that motion tolled the appeal period.
- Trial court denied the Rule 59 motion on 11/22/2011, finding credibility conflicts and that evidence did not compel upsetting the verdict.
- Fagnant filed a motion for reconsideration of the Rule 59 denial on 11/28/2011 (more than 10 days after the underlying judgment), which the court denied on 12/28/2011.
- Fagnant filed a notice of appeal on 1/25/2012 (within 30 days of the reconsideration denial but more than 60 days after the original judgment); the Supreme Court dismissed the appeal as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-judgment motion filed after denial of a timely Rule 59 tolls the appeal period | Fagnant: her motion for reconsideration should be treated as an effective Rule 59 motion that tolled the appeal period | Foss: a successive Rule 59-style motion filed more than 10 days after the judgment is untimely and does not toll appeal time | Held: Untimely successive post-judgment motions do not toll the appeal period; appeal dismissed as untimely |
| Whether only timely post-judgment motions toll appeal time under V.R.A.P. 4(b) | Fagnant: motion for reconsideration properly extended tolling because it addressed the Rule 59 denial | Foss: V.R.A.P. 4(b) tolling applies only to timely motions as defined by V.R.C.P. 59 | Held: V.R.A.P. 4(b) requires the post-judgment motion be timely; Rule 59 timely = within 10 days of judgment |
| Whether the denial of the reconsideration motion is separately appealable even if the underlying judgment appeal is untimely | Fagnant: denial of reconsideration is a separately appealable order | Foss: denial is not separately appealable where it seeks same relief on same grounds | Held: Denial not separately appealable here because it sought same relief on same grounds as initial Rule 59 motion |
| Whether an exception should be made for second motions filed promptly after denial that raise new issues | Fagnant: there should be an exception for a second motion filed within ten days of the first that raises new points | Foss/State amicus: such an exception would undermine finality; rules are plain | Held: Court rejects exception; adopts bright-line rule that only timely Rule 59 motions toll appeal time |
Key Cases Cited
- City Bank & Trust v. Lyndonville Sav. Bank & Trust Co., 157 Vt. 666, 599 A.2d 1051 (Vt. 1991) (timeliness of appeal is jurisdictional)
- Turner v. Turner, 160 Vt. 646, 641 A.2d 342 (Vt. 1993) (untimely motion to amend does not toll appeal time)
- Fournier v. Fournier, 169 Vt. 600, 738 A.2d 98 (Vt. 1999) (motions for reconsideration may be treated as Rule 59 motions in substance)
- Murray v. St. Michael’s Coll., 164 Vt. 205, 667 A.2d 294 (Vt. 1995) (same)
- Glinka v. Maytag Corp., 90 F.3d 72 (2d Cir. 1996) (second motion to reconsider of denial of tolling motion does not further extend appeal period)
- Acevedo-Villalobos v. Hernandez, 22 F.3d 384 (1st Cir. 1994) (untimely post-judgment motion does not affect appeal time)
- Dixie Sand & Gravel Co. v. Tenn. Valley Auth., 631 F.2d 73 (5th Cir. 1980) (successive post-judgment motions do not toll appeal period)
- Sears v. Sears, 86 Ill.2d 430, 422 N.E.2d 610 (Ill. 1981) (state precedent adopting finality rationale against successive tolling motions)