2013 VT 16A


Fagnant v. Foss (2012-030)
 
2013 VT 16A
 
[Filed 30-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 16A

 

No. 2012-030

 

Mary Fagnant 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Lamoille Unit,


 


Civil Division


 


 


Kim Foss


September Term, 2012


 


 


 


 


Dennis
  R. Pearson, J.


 

Todd D. Schlossberg of Law Office of Todd
D. Schlossberg, Burlington, for Plaintiff-Appellant.
 
Susan J. Flynn of Clark, Werner &
Flynn, P.C., Burlington, for Defendant-Appellee.
 
William H. Sorrell, Attorney General, and Bridget C. Asay,
Assistant Attorney General,
  Montpelier, for Amicus Curiae State
of Vermont.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
PER CURIAM.   Upon
consideration of defendant’s motion for reargument, an amicus curiae memorandum
of law in support of that motion filed by the Attorney General’s Office, and
plaintiff’s memorandum of law in opposition to the motion, we grant the motion
for reargument, withdraw our opinion of March 15, 2013, and replace it with the
instant opinion dismissing this appeal as untimely filed.
¶ 2.            
The facts surrounding the timeliness issue are undisputed.  On
September 23, 2011, the jury entered a verdict, and on September 26, 2011, the
trial court entered a judgment, in favor of defendant.  Having concluded
that a low-impact automobile accident resulting from 

defendant’s
negligence was not the proximate cause of any injuries and harm to plaintiff,
the jury did not assess any damages against plaintiff.  On October 7,
2011, plaintiff filed a timely motion to set aside the verdict and for a new
trial pursuant to Vermont Rule of Civil Procedure 59(a), arguing that: (1) the
evidence, even when viewed most favorably to the verdict, demonstrated that
plaintiff sustained at least some injury as the result of the accident; (2) the
jury’s verdict to the contrary reflected a manifest disregard of that evidence;
and (3) defendant’s statement during closing argument that plaintiff was
required to prove that she suffered a permanent injury was an erroneous and
improper statement of the law that undermined the integrity of the jury’s
verdict.  Plaintiff’s timely Rule 59 motion tolled the running of the
thirty-day appeal period until the trial court ruled on the motion.  V.R.A.P. 4(b). 
¶ 3.            
On November 22, 2011, the trial court denied
plaintiff’s Rule 59 motion.  The court acknowledged the testimony of
plaintiff’s three experts stating that plaintiff suffered from pain caused by
the accident, but noted that those opinions were highly dependent on plaintiff’s
self-reported statements and that the evidence, including the testimony of
plaintiff’s daughter, had called into question plaintiff’s credibility, which
was for the jury to assess.  The court concluded that, given the
conflicting testimony and evidentiary inconsistencies, there was no compelling
indication that the jury unreasonably or unjustifiably disregarded the
substantial weight of the evidence presented at trial.  In rejecting
plaintiff’s reliance on a three-justice-panel decision of this Court, the trial
court noted that plaintiff never asked the jury to consider awarding her
damages for short-term injuries and that her entire case was premised on a
claim that she sustained long-term injuries from the accident.
¶ 4.            
On November 28, 2011, six days after the
court’s denial of her Rule 59 motion, plaintiff file a motion for
reconsideration or clarification of the trial court’s ruling on plaintiff’s
Rule 59 motion.  The motion for reconsideration sought the same relief on
the same grounds as set forth in her earlier Rule 59 motion, but specifically
took issue with the court’s comment that plaintiff had sought damages only for
long-term permanent injuries and never asked the jury to consider an award
based on short-term injuries.  Plaintiff noted that the first question on
the special verdict form asked the jury whether she had suffered “any” injury
as the result of the accident and that she did not request, and the court did
not give, an instruction limiting her claim to long-term or permanent
injuries.  Hence, she reiterated her principal argument made in her Rule
59 motion that the evidence did not support the jury’s conclusion that she
sustained no injury as the result of the accident.
¶ 5.            
On December 28, 2011, the trial court denied
plaintiff’s motion for reconsideration.  In denying the motion, the court
once again emphasized that the opinions of plaintiff’s experts were “wholly
dependent” on plaintiff’s self-reported statements of having sustained an
immediate injury following the accident and that those statements were undercut
by challenges to plaintiff’s credibility, which was for the jury to
assess.  The court also reiterated that plaintiff’s strategy at trial was
to focus on obtaining compensation for long-term injuries that she claimed
resulted from the accident, which is why plaintiff did not object to defense
counsel’s statements in closing argument framing the dispute as such. 
Plaintiff filed a notice of appeal from that ruling on January 25, 2012. 
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.
¶ 6.            
On appeal, defendant’s first, albeit brief, argument
was that this Court lacked jurisdiction to hear the appeal because it was
untimely filed.  See City Bank & Trust v. Lyndonville Sav. Bank & Trust Co., 157 Vt. 666, 666, 599 A.2d 1051, 1052 (1991) (mem.) (noting jurisdictional nature of
timeliness of appeal).  Defendant
acknowledged that plaintiff’s initial Rule 59 motion tolled the running of the
appeal period until the trial court ruled on the motion on November 22, 2011,
but argued that plaintiff’s motion for reconsideration did not continue to toll
the running of the appeal period because it was not filed within ten days of
the underlying judgment.  In making this argument, defendant implicitly
indicated that Rule 59 motions must be filed within ten days of the underlying
judgment, see V.R.C.P. 59(b) (“A motion for a new trial shall be filed not
later than 10 days after the entry of the judgment.”); V.R.C.P. 59(e) (“A
motion to alter or amend the judgment shall be filed not later than 10 days
after entry of the judgment.”), and that only timely Rule 59 motions toll the
running of the appeal period, see V.R.A.P. 4(b) (stating that running of appeal
period is terminated by “timely motion” under enumerated rules, including Rule
59); Turner v. Turner, 160 Vt. 646, 646-47, 641 A.2d 342, 343 (1993)
(“The time for filing the notice of appeal was not tolled by defendant’s
untimely motion to amend.”).  Thus, defendant’s argument appeared to
presume that plaintiff’s motion for reconsideration could be treated as a Rule
59 motion, albeit an untimely one that could not toll the running of the appeal
period.
¶ 7.            
Nevertheless, in rejecting this argument, we
cited only our settled law that a motion for reconsideration is treated as a
Rule 59 motion if its content and timing indicate that it was, for all intents
and purposes, such a motion.  Fournier v. Fournier,
169 Vt. 600, 601, 738 A.2d 98, 100 (1999) (mem.); Murray v. St. Michael’s
Coll., 164 Vt. 205, 208, 667 A.2d 294, 297 (1995).  We
concluded that, even though plaintiff’s motion for reconsideration was directed
at the trial court’s denial of her Rule 59 motion rather than the underlying
judgment, the motion was essentially a motion to alter or amend that continued
to toll the running of the appeal period.
¶ 8.            
Defendant filed a timely motion for
reargument, asserting that we had overlooked her argument that a Rule 59 motion
is not timely unless filed within ten days of the judgment being appealed and
that the motion here, irrespective of whether it could be considered a Rule 59
motion, was not filed within ten days of the judgment and thus was not a timely
Rule 59 motion that tolled the running of the appeal period.  Following
the filing of plaintiff’s motion, the Attorney General filed a motion for
permission to submit an amicus memorandum of law in support of the motion,
noting that our holding on this issue was contrary to established federal law
and created uncertainty over the finality of judgments.  We granted that
motion and gave plaintiff the opportunity to file a memorandum of law opposing
defendant’s motion.
¶ 9.            
Upon review of those memoranda of law and
further consideration of the issue, we grant defendant’s motion for reargument,
withdraw our March 15, 2013 decision, and replace it with the instant opinion
dismissing plaintiff’s appeal as untimely filed.  In so ruling, we
acknowledge that the question is not whether plaintiff’s motion for
reconsideration may be considered, for all intents and purposes, a Rule 59
motion—it surely may be as established by the case law cited in our original
opinion—but rather whether that motion, assuming it was intended as a Rule 59
motion, tolled the running of the period for appealing the underlying judgment.
¶ 10.        
The plain meaning of our rules compels us to
answer the latter question in the negative.  The motions listed in Rule
4(b) toll the running of the appeal period only if they are timely filed. 
V.R.A.P. 4(b) (stating that running of appeal is terminated by “timely motion”
under rules enumerated therein, and full time for appeal is computed from entry
of order made upon such “timely” motion).  Rule 59 motions are timely only
if filed no later than ten days after the entry of the judgment.  V.R.C.P. 59(b), (d).  In the instant case, plaintiff’s
motion for reconsideration—for all intents and purposes a Rule 59 motion—was
filed more than ten days after entry of the judgment being appealed and thus
was untimely.  Because it was untimely, it did not toll the running of the
appeal period. 
¶ 11.        
Rule 4 of the Vermont Rules of Appellate
Procedure “is substantially identical to Federal Appellate Rule 4,” Reporter’s
Notes, V.R.A.P. 4, and Rule 59 of the Vermont Rules of Civil Procedure “is
substantially similar to Federal Rule 59,” Reporter’s Notes, V.R.C.P. 59. 
The federal case law on successive motions for a new trial or to alter or amend
a judgment is well-established, generally uniform, and consistent with the
plain meaning of the rules described above.  If a motion terminating the
running of the appeal period is made under Federal Rule 4, “a motion to
reconsider the district court’s denial of the motion does not suspend further
the running of the appeal period” unless the motion “is granted in a way that
changes the judgment so as to harm the opposing party,” in which case “the
party injured by the change can suspend the time for appealing from the amended
judgment by filing a timely motion for reconsideration.”  16A C. Wright et
al., Federal Practice and Procedure § 3950.4, at 381-87 (4th ed. 2008); see
also 20 J. Moore, Moore’s Federal Practice § 304.13[3], at 45-46 (3d ed. 2013)
(“In order to terminate the running of time for filing a notice of appeal, a
motion under one of the Civil Rules enumerated in Appellate Rule 4(a)(4) must be timely filed. . . .  [A] second motion,
filed after denial of the initial motion, does not toll the time for appeal
unless the second motion is also filed timely, as measured from the entry of
the underlying judgment.”).
¶ 12.        
As the Second Circuit of the United States
Court of Appeals stated after surveying opinions by the other federal circuit
courts: it is “well established in other Circuits that ‘[a] motion to
reconsider an order disposing of a [time tolling post-trial] motion of the kind
enumerated in . . . Rule 4(a)[(4)] does not again
terminate the running of the time for appeal.’ ”  Glinka
v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) (quoting Dixie Sand &
Gravel Co. v. Tenn. Valley Auth., 631 F.2d 73, 74 (5th Cir. 1980)); see
also Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 389 (1st Cir. 1994)
(“It is well settled that a motion for reconsideration served more than ten
days after entry of judgment does not affect the time for appealing from that
judgment.”); Charles L.M. v. Ne. Indep. Sch. Dist., 884 F.2d 869, 870-71
(5th Cir. 1989) (holding “that the second motion was a successive motion for
reconsideration, condemned by well-established authority in this and other
circuits,” and stating that “[t]he interest of finality requires that parties
generally only get one bite at the Rule 59(e) apple for the purpose of tolling
the time for bringing an appeal”).  The court in Glinka adopted the
well-established rule, declining to create a different rule that would
undermine the finality of judgments by encouraging the filing of successive
motions to extend the notice-giving period.  Glinka, 90 F.3d at 74.
¶ 13.        
State courts addressing this issue have
arrived at the same conclusion for the same reasons.  See, e.g., Sears
v. Sears, 422 N.E.2d 610, 612-13 (Ill. 1981) (citing interests of finality
and efficient administration of justice in holding that successive
post-judgment motions do not toll the running of the appeal period); Elam v.
S. Car. Dep’t of Transp., 602 S.E.2d 772, 777 (S.C. 2004) (reaffirming its
adherence to prevailing federal rule that successive Rule 59 motions do not
toll running of appeal period).  We join those courts in holding that an
untimely successive Rule 59 motion does not toll the running of the appeal
period.
¶ 14.        
None of the arguments raised by plaintiff in
opposition to defendant’s motion for reargument persuades us otherwise. 
Plaintiff first argues that our decision on this issue in the original opinion
was correct and that the motion for reargument fails to meet the criteria of
Vermont Rule of Appellate Procedure 40, which requires the moving party to
state points of law or fact overlooked or misapprehended in the original
opinion.  As indicated above, defendant squarely, albeit briefly, argued
that a second post-judgment motion filed beyond the ten-day time limit, such as
plaintiff’s motion for reconsideration in this case, does not toll the running
of the appeal period.  Her arguments in her motion for reargument, as well
as those in the Attorney General’s memorandum of law in support of that motion,
merely cite additional authority and reasoning for essentially the same
argument raised in her principal brief.  Instead of addressing this
argument directly in our original opinion, we focused on the fact that the
motion for reconsideration was filed within ten days of the trial court’s
denial of plaintiff’s Rule 59 motion and thus could be considered a timely
motion to alter or amend.  In short, our ruling on this issue never
reached the core argument presented by defendant, and thus defendant’s motion
for reargument fits within the parameters of Rule 40.  As for plaintiff’s
insistence that our initial decision was correct, he fails to cite, and we have
not found, a single case that directly supports allowing her motion for
reconsideration to toll the running of the period for appealing from the
underlying judgment in this case entered over two months earlier.
¶ 15.        
Plaintiff also argues that defendant failed to preserve before the trial
court the issue that her motion for reconsideration did not toll the running of
the appeal period.  This argument makes no sense.  The timeliness of
plaintiff’s appeal did not become an issue until she filed her notice of appeal
after the trial court denied her motion for reconsideration.  Because the
timely filing of an appeal is a jurisdictional prerequisite for appellate
review, it is not necessary to oppose a post-judgment motion as out of time to
preserve the issue of a whether a subsequent notice of appeal was timely filed. 
See Lizardo v. United States, 619 F.3d 273, 278 (3d Cir. 2010) (“An untimely
Rule 59(e) motion does not toll the time for filing an appeal under Rule 4(a)(4)(A).  This is true even if the party opposing the
motion did not object to the motion’s untimeliness and the district court
considered the motion on the merits.”).
¶ 16.        
Next, plaintiff argues, that even if this Court concludes that the
appeal from the underlying judgment was untimely, there remains a timely appeal
from the denial of her motion for reconsideration.  We disagree. 
Plaintiff’s brief argument relies exclusively on Raheman v. Raheman, 795
N.E.2d 1239 (Mass. App. Ct. 2003), an intermediate appellate state court
decision involving unique circumstances.  In that case, the appellate
court considered whether an appeal from denial of the defendant’s motion for
reconsideration of the trial court’s earlier denial of his motion for relief
from judgment was properly before it.  The court concluded that the motion
for reconsideration was “separately appealable” because: (1) the initial denial
of relief from the underlying judgment was based on the absence of supporting
materials; (2) the motion for reconsideration “was supported by a significant
body of additional material”; and (3) the motion judge reconsidered the merits
of the motion before deciding it.
¶ 17.        
We need not decide if we would arrive at a similar holding under similar
circumstances because in this case, as detailed above, plaintiff’s two
post-judgment motions sought the same relief on the same grounds—a new trial
because the jury’s determination that plaintiff had not suffered any injury as
the result of the accident was contrary to the evidence presented at trial,
which plaintiff argued conclusively demonstrated that she had suffered at least
some injury.  The fact that plaintiff in her motion for reconsideration
challenged one comment that the trial court made in denying her Rule 59
motion—that plaintiff’s case was aimed at recovering damages for long-term injuries—did
not make the court’s denial of that motion an appealable decision distinct from
the underlying judgment and its order denying her initial Rule 59 motion. 
See Acevedo-Villalobos, 22 F.3d at 390 (holding that plaintiffs’
untimely second motion for reconsideration that sought same relief on same
grounds did not enlarge time for appeal); see also Martinez v. City of
Chicago, 499 F.3d 721, 726-27 (7th Cir. 2007) (noting that underlying
judgment and denial of timely Rule 59 motion are not separately appealable
because they merge and are both properly before appellate court); Sears,
422 N.E.2d at 612 (noting that as practical matter denial of timely
post-judgment motion is always reviewable along with underlying judgment).
¶ 18.        
The trial court made it clear that the primary basis for denying
plaintiff’s Rule 59 motion and her motion for reconsideration was that the
evidence, including that which placed in doubt plaintiff’s credibility,
supported the jury’s conclusion that plaintiff suffered no injury as the result
of the accident.  The court’s comment that plaintiff’s focus at trial was
on obtaining damages for long-term injuries was not central to its decision to
deny plaintiff’s Rule 59 motion.
¶ 19.        
Plaintiff next argues that if this Court adopts a general rule that a
Rule 59(e) motion following the denial of a Rule 59(a) motion does not toll the
running of the appeal period, we should recognize an exception where the second
Rule 59 motion is filed within ten days of the first one and primarily raises
issues that were not raised before.  In making this argument, plaintiff
relies upon the South Carolina Supreme Court’s decision in Elam. 
The principal flaw in this argument is that, as explained above, the applicable
rules plainly provide that only timely filed Rule 59 motions toll the running
of the appeal period.
¶ 20.        
In any event, as discussed above, plaintiff’s motion for reconsideration
in this case continued to seek the same relief on the same grounds.  The
motion differed from the earlier Rule 59 motion only in that it questioned a
comment that the trial court made in denying the Rule 59 motion regarding
plaintiff’s focus at trial on obtaining damages for long-term rather than
short-term injuries.  If we were to conclude that plaintiff’s motion for
reconsideration tolled the appeal period in this case under the rule she
proposes, virtually any motion for reconsideration that questioned any comment
made in a decision denying an initial Rule 59 motion could be considered to
have tolled the running of the appeal period.  Theoretically, such
questioning of previous Rule 59 rulings could go on indefinitely, continuing to
challenge the nuances of each ruling.  Moreover, interests in the finality
of judgments and the efficient administration of justice could be compromised
by the fact that parties undoubtedly would dispute whether post-judgment
motions sufficiently raised new points so as to toll the running of the appeal
period.  A bright-line rule avoids such potential problems, which would
not be sufficiently addressed by a reliance on Vermont Rule of Civil Procedure
11 to prevent frivolous motions.
¶ 21.        
Nor does Elam support plaintiff’s proposal.  That case
involved an initial perfunctory oral post-judgment motion followed by a timely
written motion—not successive written motions, with the second one being
untimely, as here.  The South Carolina Supreme Court reaffirmed previous
decisions correctly applying the prevailing federal view that successive
post-judgment motions do not toll the running of the appeal period.  Elam,
602 S.E.2d at 777.
¶ 22.        
Next, plaintiff argues that if this Court concludes that successive Rule
59 motions are not permissible, we should refer the matter to the appropriate
rules committees or apply our holding prospectively.  We reject these
arguments.  Our role is to interpret the meaning of the law.  We have
concluded that the rules plainly allow only timely Rule 59 motions to toll the
running of the appeal period.  Because our decision is based on the plain
meaning of our rules and well-established federal law interpreting similar
rules, this is not an appropriate case for prospective application of our
holding.  See Am. Trucking Ass’ns v. Conway, 152 Vt. 363, 378, 566
A.2d 1323, 1332 (1989) (stating that judicial decision is applied prospectively
“only where the case establishes a new rule of law (either by overruling clear
past precedent or by deciding a matter of first impression in a manner ‘not
clearly foreshadowed’), and where its retroactive application would be
inequitable” (quoting Solomon v. Atlantis Dev., Inc., 145 Vt. 70, 74,
483 A.2d 253, 256 (1984))).
¶ 23.        
Finally, plaintiff asks this Court to suspend the rules pursuant to
Vermont Rule of Appellate Procedure 2 for the purpose of preserving our
original opinion in this case.  We decline to suspend the rules to extend
the running of the appeal period beyond that plainly stated in the rules. 
See V.R.A.P. 2 (stating that Supreme Court may suspend rules except as
otherwise provided in V.R.A.P. 26(b)); V.R.A.P. 26(b) (stating that Supreme
Court may not enlarge time for filing notice of appeal).  
    
This Court’s March 15, 2013 opinion is withdrawn.  The
appeal is dismissed as untimely filed.
 
 
                                                                  
BY THE COURT:
 
 
                                                                  
_______________________________________
                                                                  
Paul L. Reiber, Chief Justice
 
                                                                  
_______________________________________
                                                                  
John A. Dooley, Associate Justice
                                                                  

                                                                  
_______________________________________
                                                                  
Marilyn S. Skoglund, Associate Justice
 
                                                                  
_______________________________________
                                                                  
Brian L. Burgess, Associate Justice
                                                                  

                                                                  
_______________________________________
                                                                  
Beth Robinson, Associate Justice
 

