Ying v. Heide, 2013 VT
81
Raising children requires a certain amount of tact and
discretion. What works for one child
will not for the other. One of the magic
devices that parents often employ is the five-count—“I’m going to count down
from five, and before I get to zero, you better be upstairs.” But the trick of the five-count is that the
child has to understand what zero means and the consequences it implies. It also requires the proper circumstances. When the child is overtired, intractable, and
unable to separate emotion from process, you don’t want to start counting. It’s not fair to you or to the child, who
simply can’t comply. In those cases, you
just grab the kid, give them a hug, and carry them upstairs.
The issue in front of the SCOV today is not so
different. In 2012, Plaintiff sought to eject
her ex-husband from property that she owned and had leased to him. The Defendant disputed the terms of the lease
and filed a set of counter-claims. The
case was scheduled for a preliminary status conference in June 2012, but attorney
for plaintiff asked the court to move the hearing to July. The trial court re-set it for July 5th, but
then plaintiff and her attorney failed to appear. At the hearing, counsel for defendant asked that
the case be dismissed and withdrew his counterclaims. The trial court granted the motion, largely
as a punitive measure toward plaintiff’s counsel for failing to attend.
Now normally, when something like this happens, you, as
legal counsel, panic and file a motion for reconsideration or file an appeal,
begging the court, any court, to have mercy on your client. If you don’t do this yourself, your client,
who has a malpractice attorney on her shoulder, is usually urging you to do
this. In this case, however, plaintiff’s
attorney did nothing. Instead, he waited
twenty-seven days and filed a motion for relief from judgment under Rule 60(b)
for excusable neglect.
As the SCOV majority notes this was not a good move. In one fell swoop, plaintiff’s attorney made
the case more complicated and far closer than it ever should have been.
Here’s why. The trial
court has the discretion to dismiss an action when a plaintiff fails to
prosecute or appear at scheduled hearings.
But this power is limited by two principles. First, the courts favor deciding cases on the
merits. Second, sanctions must be
proportionate to the discovery offense.
As the SCOV has noted in prior decisions, that means dismissal is a tool
of last resort, not first. Bad faith and
deliberate disregard for the court’s orders are often pre-requisites to
dismissal.
Here no such bad faith or deliberate disregard was in
evidence. Plaintiff’s attorney admitted
that he failed to put this meeting on his calendar and did not see it on the
court’s electronic calendar. This is bad,
but not dismissal bad as the SCOV majority opines.
The problem is that plaintiff’s attorney has turned this
question into a post-judgment Rule 60(b) issue, which allows for only limited
review. This leaves the SCOV majority
stymied for an analysis. The majority after
some searching latches onto the idea of analogizing the present case to a
default judgment.
Using this framework allows the majority to analyze the
problem through the Rule 60(b) jurisprudence associated with re-opening default
judgments for reasons of excusable neglect.
Essentially, this is a backdoor method to give the majority a route back
to the analysis that it would have conducted if plaintiff’s attorney had simply
appealed the dismissal. This leads to a
reversal and presumably (if plaintiff files for it) a re-opening back in the
trial court.
It is not a satisfactory result, and the majority is less than
happy with the hoops that this case made it jump through, but in the end, three
justices apparently felt that substantial justice required this outcome.
The Chief Justice joined by Justice Burgess disagrees. In a sharply worded dissent, the minority
excoriates plaintiff’s counsel. The
dissent notes that plaintiff’s attorney’s behavior is inconsistent with the
standards of excusable neglect. Attorney
in this case not only missed the hearing, but he failed to check in with the
court, re-open the case or take a straight appeal. He sat on the matter for several weeks and
filed an imprudent motion at the last minute.
For the dissent, such failure, coupled with the attorney’s subsequent mistakes,
justifies the penalty imposed and does not satisfy the criteria of Rule 60(b).
Nevertheless, this view is one vote short of a majority and
does not carry the day. The majority’s
more forgiving view wins out and plaintiff will get her second cut at the
apple.
On a broader and more practical level, today’s decision means
that no trial court in the foreseeable future is going to dismiss a case when
an attorney misses a hearing. The bar
has effectively been raised and the count for the errant children has been
raised from five to ten.
For any attorneys out there, keep this decision clean and close
to your bedside. It could save your case
someday.
Comments
Post a Comment