*1 604 produce market value
plied subject property’s fair proper listed value. Kachadorian, at 144 A.2d Vt. at equaliza- apply an either ascertain Board failed Thus, tion, property. comparable of the the listed value ratio to Kachadorian, that: we stated is similar to case made the Board mystery a as to what use It remains Only comparables. regarding the Town’s the information of a The listed value com- values were discussed. their listed subject property’s determining parable is not be used alone, value, absence of and listed value fair market equali- arriving value, at a ratio for fair market useless purposes. zation words, (citation omitted). other
Id. A.2d at 967-68 compara- value regarding the listed simply adducing evidence equalization ascertaining applying an property, ble without properties, does among similar equitable taxation to ensure ratio under 32 V.S.A. prove correct valuation § as- failure to the Board’s A review the record indicates equalization its conclusion an ratio renders apply certain and unsupported. property’s correct valuation remanded. Reversed and Incorporated, Ag Corporation Asset, et
C.C. Miller al. [563 626] No. 88-274 Dooley Morse, Allen, C.J., Peck, Gibson, JJ. Present: Opinion Filed June Stevens, Stowe, Harold B. Plaintiff-Appellee.
Samuelson, P.C., Little, Burlington, Portnow & for Defend- ants-Appellants.
Gibson, J. The seventeen individual defendants this case appeal superior plaintiff’s an order granting court motion judgment against for default noncompli- them as a sanction for discovery ance with orders. We reverse and remand. Asset, Ag dairy management
Defendant Inc. into a entered cow contract with the seventeen individual this case in defendants 1, 1984, acting pursuant late 1983. On March to contract as agent attorney-in-fact, Ag purchased their and Asset four hun- plaintiff cows Corporation, dred from C.C. Miller a cattle broker Morrisville, transaction, Ag Vermont. In the of that course As- $330,000promissory plaintiff set executed a note to on behalf of the individual defendants. regular payments promissory
Defendants made on the note un- 1985, May late payments stopped. til when all In November of 1985, plaintiff principal defendants recover the sued to balance on judgment against Ag due the note. A default was entered As- set, which appear complaint, either failed to to answer the January eventually The individual defendants were joined complaint: and three raised affirmative defenses to the fail- consideration, authority by ure of Ag sign lack of Asset to promissory note, arising plaintiff’s and fraud from use of the proceeds. note’s
Discovery begun by plaintiff, requests was for ad- served mission interrogatories. defendants as well as When there response no discovery request, plaintiff was either filed to motions compel. summary August to also judgment. Plaintiff moved for 1987, together. all motions were The denied the heard court summary motion for judgment, were but ordered that defendants admission, plaintiff’s requests deemed to have admitted further outstanding interrogato- ordered defendants to answer all requests produce September 21, ries and by so that the case could be after tried 1st. November by Sep- requests respond
Defendants failed sanc- again moved for 21st, at which time once tember fac- tions, give their failure seeking to defendants for default 1987, On defenses. October tual basis for their affirmative cross- objected to the motion sanctions defense counsel later, days plaintiff was enlarge time. Nine moved to interrogatories from nine responses to its with handwritten served unsworn, they were responses The were of the defendants. superior not filed with court. 16, 1987, and on December
The motion for sanctions was heard given to answer all outstand- were until December 31 defendants so, plaintiff re- Upon ing discovery requests. their failure do January The motion on newed the motion for sanctions 31, 1988, argued which time the court defaulted on was March discovery requests. all defendants their failure effect, prepared by plaintiff, en- was order to that April appeal that order. tered on 1988. Defendants error argue actions constituted Defendants that the trial court’s inter- had answered the for three reasons: nine of the defendants *3 required findings of fact rogatories; the court did make the not Vermont, Inc., Hospital John v. Medical Center 136 Vt. under of (1978); 517, defaulting 1134 the sanction 394 A.2d court’s impos- defendants an of its discretion. Because it the was abuse upon ulti- for the which this sible this Court to ascertain basis imposed, less drastic alternatives mate sanction was and whether considered, findings of fact. were we reverse and remand failing 37(b)(2) party expressly provides that a to V.E.C.P. requests may comply or be sanctioned with orders varying or de- degrees, imposition the costs to dismissal Vermont, Hospital on v. Medical Center relied John fault. defendants, by we held that nec- in invoked it is the ultimate sanction of dismissal
where
by findings of fact that
essary that
the trial court
indicate
disregard
and willful
or deliberate
there has been bad faith
further,
party seeking
orders,
the
the court’s
thereby.
imposition of
prejudiced
been
sanction has
merely
imposed
punish-
as
the dismissal sanction cannot be
court’s order.
comply
ment
to
with the
for failure
519,
Plaintiff John on the that dis- complaint judgment, missal of a is different from a default motion, hearing that because was a transcript there a full on the is available to this Court to determine whether the trial court’s appropriately discretion applied. was Plaintiff contends that “the replete record with willful and de- [is] [evidence defendants’] orders,” disregard justifying liberate of the the “ultimate court’s sanction of default.” perceive
We no difference and a default between dismissal inapplicable John sufficient make John to this case. genuine noted that the of an inabil- dismissal action because of a ity comply pretrial production process awith order raised due Constitution, issues under United States and that less drastic indifference, faith, imposed “gross sanctions be should unless bad willfulness, coupled prejudice” moving substantial 519-20, party, has been Id. at found. A.2d at transcript does show that the trial court found noncompliance faith, defendants’ to have been willful or bad nor any does it whether less —such indicate drastic sanctions — striking weighed were of defendants’ affirmative defenses any defendants, particularly of the nine individuals those who attempted requests. some form with the “When appellate position an in a it court is left where has to speculate as to the basis reached its trial court decision, 11, Rogers, it will refuse Harman to do so.” rule, basic in Harman That invoked specifically requested by party because findings pur there were 52(a), equally suant to applies involving V.R.C.P. as well cases 37(b) Rule sanctions.* mindful, John,
We are
as we
349 A.2d
noted in
* 52(a) unnecessary findings We note for that under V.R.C.P. of fact are deemed provided 41(b), involuntary exept pertaining all dis- motions Rule judgment strictly speaking missal of under actions. While a motion for a default 37(b) definition, implica- V.R.C.P. not come does within that the constitutional support John and the similarity tions cited in defaults dismissals and between findings necessary our conclusion that in this fact are case. remanded.
Reversed and mo- Morse, J., dissenting. granted plaintiff’s The trial court repeatedly failed to because defendants tion for default af- provide basis for their orders and to a factual for find- majority and remands firmative defenses. reverses necessary the ings findings I are because fact. do not believe dissent, Therefore, dispute. respectfully I are facts order, finalizing long-overdue judgment court’s a would affirm the plaintiff. for a began in started as
This lawsuit November of 1985. What promissory note has become straight-forward collection of obviously spurred nearly in a contest mired docket entries candidly by dilatory admitted counsel tactics. Even defendants’ responses plaintiff’s discov- argument at oral awaited plaintiff’s ery requests would not substantiate defenses requires so that the trial claim. Yet Court now a remand this obvious, patently findings point can make out what court namely, no that defendants have defense. fact, date, dispute the record no of material
To discloses plaintiff prevail as mat- those facts the record mandate that Nevertheless, posits majority ter that some sanction of law. might striking appropriate, such as the affirm- short of default be course, That, judgment be tantamount to ative defenses. would are there is the affirmative defenses all because recovery. plaintiff’s defeat Vermont, re Hospital Inc. does not John Medical Center
quire what fac “the does not reveal findings of fact unless record 517, 519, 394 A.2d guided tors the court’s discretion.” Here, court that the trial the record revealed with dis come forth entered default because defendants did not and, go covery responses disputed factual basis to without some trial, entering or a default there was no reasonable alterative to summary with “bad faith deliber order. John dealt prejudice ate disregard and willful for the court’s orders” and thereby. no excuse Id. discloses occasioned record defending allowing provide more time to defendants to a basis the lawsuit.*
* fac- revealed no The unsworn nine of the defendants answers to tual basis for the defenses. affirmative *5 short, delay only purpose by today’s is to served decision perform following and make the lower court ritual: (which (1) undisputed take the information from the record (2) fact”; majority’s opinion) “findings and label it and de- default, skip termine that the facts warrant a the sanction summary judgment in favor of for the default and enter apparently amount owed obviate on the note. This ritual would speculate the need “to as to the which the trial court basis 11, 19, Rogers, A.2d reached its decision.” Harman v. stop I believe it would be more sensible to Dooley joins in charade now and affirm. Justice this dissent. Barbara M. Monti v. State of Vermont
[563 629] No. 88-540 Peck, Barney, (Ret.), Bryan Katz, Supr. Present: J. and C.J. JJ. Springer, (Ret.), Specially Assigned D.J.
Opinion Filed June Richard E. Da- Christopher E. Davis T. Greene of Richard Associates, Inc., Barre, Plaintiff-Appellee. vis