Thursday, June 27, 2013

M. Avoué’s Holiday


Coles v. Coles, 2013 VT 36

One can imagine a derivative Seinfeld routine emerging from today’s case, which would work over the magic phrase: “excusable neglect.”

What is it about excusable neglect?  Is it excusable or is it neglect?  Because to me it’s one or the other.  It’s either excusable, or it’s neglect.  It can’t be both.  It would be like a babysitter saying, “I’m sorry I didn’t watch the kid . . . Who knew that much jewelry could be flushed down a toilet.”  It just doesn’t make sense.  C’mon, you neglected him, and there is no excuse for that.

Funny thing, the SCOV totally agrees with Jerry. 


In litigation there are deadlines and then there are DEADlines.  The former are made to be modified.  Discovery deadlines, motion deadlines, and submission deadlines are all flexible and regularly changed as the circumstances and needs of the parties shift.  These can all be changed, and the courts take a fairly generous view toward requests to extend these deadlines (even when the deadline has already elapsed). 

This flexibility is intended to give attorneys some ability to juggle schedules, deal with a changing case, and to balance the demands of a case with the practicalities of getting two or more adversarial parties to work together. 

It is a difficult thing to explain to clients.

The latter category of DEADlines consists of the few deadlines that carry serious and real consequences if they are missed and which are rarely, if ever, extended or modified.  

Statutes of limitation are DEADlines.  If you file your complaint for damages resulting from a skiing accident one year and day after you sustained the injuries, you are out of luck.  Even if you have a really good reason (such as conducting a complicated investigation and vengeance trail into an Albanian human trafficking gang that kidnapped your daughter). 

After the slap bass and a cappella segue, let’s start from the top. 

Today’s case deals with the DEADline for bringing an appeal.

In a February 22, 2011, the family court issued a support modification decision, which concluded that Father was entitled to a reduction in his child-support obligations but was also responsible for increased spousal-support payments.  This netted Father an overall $8-per-month increase in his support payments.  This was not exactly what Father hoped for when he initially filed his motion to modify and reduce his support obligations. 

Despite being signed on February 22d, the decision was not mailed out until March 14th.  Unfortunately, Father’s attorney left the office on March 17th for a vacation that lasted until April 4th.  Upon the attorney’s return, Father received notice of the trial court’s order and, naturally enough, wanted to appeal.  Of course, by this time, Father was well beyond the 30-day appeal window, which would have lapsed around March 24th. 

So on April 7th, Father filed a motion to extend the time for appeal citing Rule 4(c) of the Rules of Appellate Procedure, which allows a party to re-open the time for appeal when there is a 21-day delay between the time that the judgment is entered and the party received it.  Mother opposed the motion.

Father’s problem both at the trial court level and on appeal is that neither court will allow him to include the time between when the decision was mailed (March 14) and the day his attorney came back from vacation.  Without this additional time, Father can only claim the 20-day delay that the judgment sat at the courthouse, entered but un-mailed, which is one day short of triggering the more lenient provisions of Rule 4(c).

If this seems harsh, it is.  But it is also consistent with the SCOV’s longstanding position that the deadline for taking an appeal is a hard DEADline and any exceptions will be strictly construed against the party seeking to expand or enlarge it.  Since Father can only count 20 days delay, Rule 4(c) is of no avail.  As the SCOV puts it, Rule 4(c) is not intended to cover attorneys on vacation. 

This leads to the only other available basis for enlarging time, which is excusable neglect.  Under this standard parties can enlarge the appeal deadline if they can show excusable neglect in missing the deadline.

Father argued that it was not unreasonable for his attorney to go on vacation for two weeks, and that it was unexpected that this vacation would aggravate the delay from the trial court’s issuance and cause Father to miss the deadline.  In other words, “I’m sure we could have avoided this, but really, it was no one person’s fault.  It was just a series of unfortunate events.”

The SCOV does not agree.  It rejects the argument on the grounds that Father failed to raise it below.  But it goes on to state that even if he had, the SCOV would have denied the argument because excusable neglect does not include vacation.  If an attorney is going out of the office, she has an obligation to have someone check the mail.  DEADlines will not be waived if she fails to do this.

For longtime SCOV watchers, this comes as no surprise.  Despite its allure, “excusable neglect,” is a mirage.  It does not excuse attorney neglect or even permit behavior that might rise to the level of neglect.  Basically, anytime an appeal is missed due to some reason attributable to the attorney (glitch in the e-mail, glitch in office computer, vacation, failure to put proper postage on the envelope), the SCOV has refused to find excusable neglect and extend the appeal deadline.  The only situation where excusable neglect has been allowed is when some third-party—like the US Postal Service—has caused the delay.  But even in those cases, the attorney may still be on the hook. 

For example, if an attorney mails a notice of appeal to the SCOV one day before the deadline from a mailbox in Maui, she will not be entitled to make an excusable neglect argument when the notice arrives tardy.  That is because the attorney knew there was no way for the appeal to arrive on time—even under perfect conditions. 

But if the attorney mails a notice of appeal seven days before the deadline into a mailbox next door to the courthouse, which does not arrive until three days after the deadline, she will be entitled to excusable neglect. 

But by this poin, though, we are not really talking about excuses or neglect.  We are talking about the mistake of a third-party.  And that is what excusable neglect really is—forgiveness for the neglect of others upon whom the party reasonably relied in getting the notice of appeal filed.

This is the kind of stuff that causes lawyers to wake up in the middle of the night covered in sweat and that ruins even the most tranquil seashore vacations.  The SCOV has basically said that attorneys are always on the clock.  No breaks and no relief unless we plan for it.

It is tough lesson for anyone to learn, and it is likely a difficult one for Father in this case to bear. 

It is never easy to hear rejection. 


Or as our pseudo-Seinfeld might phrase it: No Appeal for You!

No comments:

Post a Comment