*1
of Macie’s
keys
beyond
scope
went
handing decedent
¶ 3,
Synnott,
See O’Brien
permission.
to “the
nonmoving party
is entitled
(stating
Reversed and for further opinion. this
Opinion September Filed *2 Pannu, Jasdeep Pannu of Law Jasdeep Burlington, Office of Plaintiff-Appellant. Zaikowski, Stuart Bennett and Jonathan Ciappa Bennett & PC, Shelburne, for Defendant-Appellee. the trial Robinson, in this case is whether question J. The action on account of her eviction
court’s dismissal can status conference failure to attend a scheduled lawyer’s pursuant the judgment a motion to set aside withstand facts of this case. given Procedure Rule of Civil Vermont it cannot and reverse. conclude that We ¶2. following assume the appeal, For of this we purposes married. In March de- formerly were parties facts.1 In by plaintiff. at a owned March began residing property fendant with a notice to termi- previously serving after defendant nate, in the Chittenden complaint filed a for eviction plaintiff Court, complaint alleged Division. The that defend- Superior Civil rent, value. sought not the fair market rental paid ant had Thereafter, arrearages for rental request withdrew her agreement parties a written rental between the and attached a month in rent. Plaintiff obligating pay plaintiff defendant to $1 damages alleging negligently then moved for defendant had answer, In his garage property. repaired him for the work damages compensate counterclaimed garage. on the performed for a status conference June 3. The case was scheduled *3 continuance, requested
2012. Plaintiff a and the court rescheduled July hearing the conference for 2012. The court sent a notice attorneys plaintiff to on June 13. Neither nor her parties’ both July at the 5 status conference. On defendant’s attorney appeared motion, that prejudice day. the court dismissed the case with same that had failed to plaintiff attorney The court noted and her continued, to and that defendant appear asking after the case property. did not wish to his counterclaim and had left the pursue dismissal, not a Plaintiff did not and did file timely motion to or amend the of dismissal alter Instead, to Rule of Procedure 59. on pursuant Vermont Civil 1, 2012, filed a motion under Rule August plaintiff’s attorney relief from based on excusable requesting Plaintiff’s that he had received neglect. attorney acknowledged July notice of the 2012 status conference and had failed written system. explained to note it his own calendar He that he had online that and the Judiciary’s day relied on the Vermont calendar plaintiff’s understanding part Our of the relevant circumstances relies in on representations his actions. counsel’s uneontradicted about hearing.2 consequence, online calendar did not list the As a he did hearing morning. not realize that there was a that Plaintiff’s attorney prejudice that the dismissal with had harmed alleged plaintiff money negligently because defendant owed plaintiff motion, repairing garage. concluding The court denied the plaintiff’s scheduling error did not amount to excusable 60(b)(1). Plaintiff appeals, arguing attorney’s under Rule that her failure to attend the status conference was neither nor purposeful prejudicial to defendant. note at that if plaintiff directly We the outset had appealed August filing motion,
on instead of a Rule this would be an easier ease. The Vermont Rules of Civil Procedure allow a trial court to dismiss a case on account of the it, or pursue because the has not a complied with order, including failing to attend a court hearing. scheduled 41(b)(2) (“For V.R.C.P. failure of the plaintiff prosecute or to court, comply with these rules or any may order a defendant move for dismissal of an action any against or of claim defendant.”). general That power is limited several important First,
considerations. the law favors on disposition cases their ¶36, 4, merits. Nichols v. Hofmann, 2010 VT 998 A.2d 1040; Dougherty Surgen,
(1986). Second, against litigants sanctions proportionate should be Jones, their offenses. See State v. (1991) 502, 504 (explaining party prosecute where does not case, its court should “fashion a sanction appropriate to the “[o]nly rarely circumstances” and would sanction of final termi nation of the case be In appropriate”). light of these first two considerations, we have recognized the discovery context that the sanction of dismissal for failure to with comply discovery resort, orders ais last not a first stop. Reversing a trial court’s dismissal juvenile of a case on account of the willful State’s orders, violation of discovery this Court explained: argument appeal, At oral apparently counsel clarified that he had cheeked the *4 Judiciary system morning July Vermont VTCourts Online calendar the 5 to any hearings day. search for for which he was scheduled that Counsel acknowl edged page expressly the main of the online calendar tool advised that cases Court, Unit, Superior in the Chittenden Civil Division were not then included system. any part within that The in error this case thus did not arise due in to calendaring by system. erroneous online the court may be a proceeding that dismissal of the agree
We However, in the sanction' necessary sanction some cases. necessary than to accomplish not be harsher should use of a dismissal discovery of the rules. The goals if court finds that only proper sanction less than by anything would prejudiced defendant be dismissal. (1991) (citations F.E.F.,
In re 156 Vt. Vt., 517, 519, omitted); Inc., v. Med. 136 Vt. Hosp. see John Ctr. (1978) that where ultimate sanction (holding used, faith or deliberate and of dismissal court must find “bad to prejudice party for the court’s orders” and disregard willful sanction). seeking Third, on a wary imposing courts must be sanctions opportunity concerning without notice and an to be heard
party
Ctr.,
Day
sanction. Lawson v. Brown’s Home
Care
proposed
(mem.)
Inc.,
(stating
551 consequential damages” against attorney who abuses court process other by, among things, causing scheduling delays). reasons, 9. For these if we reviewing were on direct appeal case,
the trial court’s decision to
dismiss
we would
readily conclude that
the trial court exceeded its discretion by
dismissing plaintiffs case
no
outright with
notice to plaintiff
because counsel failed to
at a status
appear
conference.3
—
¶ 10. The
of this
posture
case we are
the
reviewing
denial of
—
60(b)(1)
a motion to set
aside a
under Rule
makes
things harder. Rule
allows the court
party
to relieve a
of
a final judgment
“mistake, inadvertence,
order for
surprise, or
neglect.”
excusable
The trial court has discretion in deciding a
60(b) motion,
and we will affirm “unless the record indicates
that such
discretion was abused.”
v.
Lyddy
Lyddy, 173 Vt.
(2001) (mem.).
513
question
before us now
plaintiff
is whether
has
the requisite
established
“excusable ne-
—
glect” to warrant
a final
reopening
a closer question
than the actual merits of the trial court’s
prejudice.
dismissal with
In the context of a
filing,
late
the
Supreme
U.S.
Court
has
neglect”
determination,
described “excusable
as an equitable
“taking account of all relevant
surrounding
circumstances
the
party’s omission.” Pioneer
Inn Servs. Co. v. Brunswick Assocs.
(1993).
Ltd.
P’ship,
include,
U.S.
Such circumstances
without
limitation:
danger
“the
of prejudice to the [responding
party],
length
the
of
delay
and its potential impact
judicial
proceedings,
delay,
reason for the
including whether it was
within
movant,
the reasonable control of the
and whether the
movant
in good
acted
faith.” Id. The excusable neglect standard is
intended to encompass
negligence,
acts of
but does not reach
“every instance of an inadvertent or negligent omission.”
at
Id.
394. This Court has incorporated the Pioneer
factors to define
excusable
purposes of extending
period
under Vermont Rule of Appellate Procedure 4. In re Town of
87A, 16,
Killington,
aside default
a case on its merits. Because
adjudicating
goal
to the
attentive
of an
a defendant
effectively deprives
judgment by
“a
through
.
.
. determined
have the merits
opportunity to
that “the rules
we have held
adversary judicial process,”
normal
liberally
construed
should
relating
judgments
to default
defendants,
desirability
resolving litigation
and of the
favor of
are served.”
merits,
justice
that fairness and
to the end
on the
154, 157, 158-59,
Gilman,
Desjarlais
Tanner,
(1983);
Partners v.
Courtyard
see
*6
(1991) (mem.) (“[T]he
gener-
trial court should
288
purpose
or deliberate
culpable negligence
‘absent
ally reopen
”
Hart,
A.2d
303
Childs
delay.’
(quoting
(“[A]
at
¶ judgment, below was not a default Although 13. the dismissal party’s on the merits based on a resolution of the case the court’s shares critical characteristics hearing failure to at a court' appear Partners, at 595 judgment. Courtyard of a See default (“Because merits, evidence on the plaintiff presented A.2d at 288 Nevertheless, the consider- judgment not a default case. this is are similar here because defendants’ applicable ations defaults (citation on the merits.” have never been addressed defenses omitted)). the court’s dismissal had the judgment, Like default of a final on the merits without consideration judgment effect of reason, guidance For that we draw underlying facts and law. ,in setting judgments aside default review- concerning from cases of plaintiff’s the trial court’s refusal to set aside its dismissal ing claims. preference adjudication the law’s for on the Given
merits,
trial
denial of plaintiff’s
we conclude that
court’s
exceeded its discretion. We
motion to set aside
concluded,
that,
plaintiff’s explana-
as the trial court
acknowledge
not compel-
not
at the status conference was
appearing
tion for
and
hearing
failed to
calendar the
ling.
lawyer
properly
Plaintiff’s
that
excluded the
expressly
on an online calendar
instead relied
This error is not the kind
pending.
court in which this case was
of a missed
that would warrant extension
neglect”
of “excusable
87A,
Killington,
deadline. See Town
of
“an
(holding
procedure
that
internal office
breakdown” in counsel’s
office is not excusable
purposes
extending appeal
deadline).
plaintiff through
But
counsel
sought
remedy the
—
—
relatively quickly
situation
within the
in fact
appeal period,
significant
and defendant would not have suffered
prejudice
through the reinstatement of
claims and
defendant’s
counterclaims within weeks of the court’s dismissal. See Pioneer
Servs.,
Inv.
at
(explaining
U.S.
-that relevant
in
factors
determining
neglect”
“excusable
include
danger
prejudice,
length
delay,
faith
good
of party claiming excusable
neglect).
mistake,
Although plaintiffs counsel made a
there is no
that
suggestion
here
or her
lawyer acted
bad faith. Id.
herself,
There
no evidence that plaintiff
as opposed to her
lawyer, was
responsible
the failure. See Desjarlais,
Reversed. Reiber, CJ., dissenting. Though plaintiff may have suf- fered as a result of her attorney’s deficient performance, calling question into trial court’s necessary and reasonable exercise of *7 discretion is not the appropriate response view, or In remedy. my this Court ought to affirm the trial court’s deny decision to plaintiffs motion for judgment. relief from
¶ 16. Time again and we sought to highlight'the impor- tance of attorneys’ parties’ and compliance with the trial courts’ procedural Indeed, requirements. majority the stresses the salu- ¶ tary and essential Ante, nature of this compliance.
¶ 17. This case was scheduled for a status conference in June 2012. At plaintiffs request, the court rescheduled the hearing A following month. notice to this effect was sent to the parties’ attorneys. time, At appointed neither nor her attorney up. showed The court dismissed the case with prejudice day, same noting that plaintiff attorney had not come to court despite requesting the continuance and that defendant did not wish to pursue his counterclaim.
554 later, filed a motion attorney Nearly month 60(b)(1), requesting relief Rule of Civil Procedure
under Vermont
fit
sees
neglect.
majority
based on excusable
from
agree.
I cannot
grant
request.
court and
this
to reverse the trial
conference is
calendar this
properly
19. Counsel’s
60(b)(1)
the courts to relieve
permits
neglect.
not excusable
inadvertence,
“mistake,
final
order
of a
parties
judg
for relief from
“A motion
neglect.”
or excusable
surprise,
to the sound
is addressed
brought
ment
V.R.C.P.
under
court,
ordinarily
will not
ruling
of the trial
and its
discretion
that such
it
from the record
clearly appears
disturbed unless
Gilman,
v.
143 Vt.
Desjarlais
was withheld or abused.”
discretion
157,
234,
(1983);
v.
Lyddy
Lyddy,
see also
(2001) (mem.) (trial
court has
Vt.
we must affirm
a Rule
motion and
deciding
discretion
abused”).
was
Of
the record indicates that such discretion
“unless
in identifying
neglect,”
the factors courts must consider
“excusable
for' the failure.
In re Town
important
the most
is the reason
See
87A,
¶21. appropriate steps Plaintiff’s counsel did not take the even that arose as a direct result of his remedy consequence *8 to comply with the court’s order. scheduling Rather than or appealing filing timely dismissal a motion to amend the dismissal under dragged V.R.C.R counsel his feet weeks, for filing properly denied motion subject appeal. now Indeed, why delayed when asked he long, so counsel re- told, at oral “Truth sponded argument: I fell a into little bit of a when I panic got of the dismissal with prejudice]. [notice So it took me a little conjure up while to some I argument which had for.” legal basis can I Nor can conclude that the justice interests of compel 60(b)(6). a different result. See V.R.C.R Plaintiffs claim for eviction moot is because defendant departed has the property. Plaintiff also has abandoned her claim for rent because the parties’ agreement did not obligate pay defendant to rent. All that remains, then, plaintiffs is claim for damages based on defend- ant’s allegedly faulty repairs to her garage. While may claim, have lost the opportunity to litigate this she also is not subject to defendant’s defenses and counterclaims for betterment and promissory estoppel based on these same amendments to Moreover, property. plaintiff cannot claim relief under 60(b)(6), Rule “catch-all provision,” because her claim falls 60(b)(1). Johnston, under Rule Perrott v. (1989) (explaining that Rule “is only available
when a ground justifying relief is not encompassed any within omitted)). first five classes of (quotation the rule”
¶ 28. Although the law plainly prizes the substantive resolution
of legal disputes over
procedural dismissal,
their
Nichols v.
Hofmann,
VT
it does not
imprudent
authorize
attorneys to flout the court’s schedule. See
Marino,
(10th
Pelican Prod.
Corp.
893 F.2d
Cir.
1990) (“[T]his judicial preference is
counterbalanced
consider-
ations of social goals, justice and expediency, a weighing process
which lies largely within the domain of the trial judge’s discre-
omitted)).
tion.” (quotation
true,
It is
for example, as the majority
observes, that we
weighed heavily
predisposition
this
toward
resolutions on the merits when considering motions in
the context of default judgments
See,
against defendants.
e.g.,
(“A
Desjarlais, atVt.
463 A.2d at 236
judgment by
default effectively deprives of an opportunity to have
the merits of his position determined through the normal adver-
added)).
sary judicial process.” (emphasis
preference
Even this
defendants
against
judgments
indulgence
reopening
exercise
*9
the trial court’s
overruling
justify
insufficient to
often
trial court’s
(affirming
precisely to those attorneys fail to adhere plaintiffs’ limited resources. When consequences from the rescued are nevertheless guidelines but Furthermore, a disservice on defendants. it works disregard, waste the courts’ inexcusably attorneys permitted are when for other court users time, erode access they and finite valuable requirements. mandates and with the court’s comply who do I am authorized to state Justice I dissent. respectfully joins this dissent. Burgess