Thursday, November 7, 2013

[S]low Rider—Rides too Slow!

Fagnant v. Foss, 2013 VT 16A

The SCOV reverses itself—now there’s something you don’t see every day. 

Regular readers will recall the first opinion in this case, which is summarized here.  In that opinion, plaintiff–appellant more or less “won” a reversal and remand on an erroneous jury instruction.     

The sole issue this time around is whether the appeal was timely filed.  The SCOV concludes that it was not and dismisses the appeal. 

The timeline is bulleted below for convenience:

·         September 23, 2011, jury verdict for defendant
·         September 26, 2011, trial court enters judgment
·         October 7, 2011, plaintiff files Rule 59 motion
·         November 22, 2011, trial court denies plaintiff’s Rule 59 motion
·         November 28, 2011, plaintiff files a motion for reconsideration or clarification
·         December 28, 2011, the trial court denies plaintiff’s motion for reconsideration
·         January 25, 2012, plaintiff files a notice of appeal

The SCOV notes that the “notice of appeal was filed within thirty days of the date of the trial court’s ruling on her motion for reconsideration, but more than sixty days after the court’s ruling on her original Rule 59 motion.”

The essence of this appeal is whether a motion for reconsideration of denial of a time-tolling motion continues to toll the time to file an appeal.  In other words, can a litigant “stack” time-tolling motions? In line with federal law, the SCOV holds that a litigant cannot toll the time for filing an appeal with successive Rule 59 motions. 

Defendant–appellee’s primary “re-argument argument” is that a Rule 59 motion must be filed within ten days of entry of the judgment—accordingly, a successive “Rule 59” motion filed after denial of the original motion and filed more than ten days after entry of the judgment is not “timely.”  The Vermont Attorney General, with the SCOV’s permission, filed an amicus memorandum of law, noting that the SCOV’s original decision conflicted with well-established federal law. 

The SCOV agrees, and surveys federal and state court decisions dealing with the issue.  Ultimately, the SCOV joins “those courts in holding that an untimely successive Rule 59 motion does not toll the running of the appeal period.”

Plaintiff–appellant makes several arguments as to why the original opinion should stand, but the SCOV rejects them all.  Plaintiff’s first argument is that the defendant’s motion for re-argument didn’t meet the applicable criteria in that it didn’t identify sufficient points of fact or law overlooked in the original decision.  “No,” the SCOV says, defendant made the argument in her original brief and the SCOV didn’t fully address it. 
Plaintiff argues that the timeliness issue was not preserved in the trial court.  The SCOV literally says, “This argument makes no sense.”  It wasn’t an issue in the trial court. 

Plaintiff also argues that this appeal could be considered an appeal from the denial of the motion for reconsideration.  (If you look at the timeline, the second motion for reconsideration would toll the time to appeal from the denial of the first motion for reconsideration.)  The SCOV also rejects this argument, because there wasn’t any difference in the relief sought in the second motion and the argument was essentially the same.  In most cases, Rule 59 motions are part and parcel of the underlying case.  

Plaintiff’s requests for referral to the rules committee to allow a second Rule 59 motion filed within ten days of the denial of the first (as here) or for prospective-only application of the rule announced in this case are summarily rejected.  The SCOV finds no reason to do either.  The second motion was untimely; prospective application only happens when a new rule of law is announced (I mean, to be fair, this is a new rule of law to plaintiff . . . but the SCOV doesn’t seem to think so). 

Plaintiff’s last request is for the SCOV to suspend the rules in this instance.  The SCOV declines to do so and “extend the running of the appeal period beyond that plainly stated in the rules.”  I’m positive plaintiff could think of some very snarky things to say here, but we’ll leave that alone.   

And so, with that, defendant hands plaintiff a defeat snatched from the jaws of (partial) victory.   

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