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.
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