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Fagnant v. Foss

Supreme Court of Vermont

August 30, 2013

Mary Fagnant
v.
Kim Foss

On Appeal from Superior Court, Lamoille Unit, Civil Division 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.

PER CURIAM

¶ 1. 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 ...


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