Motion for Reargument Denied January 23, 2014
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.
Christina A. Jensen of Lisman Leckerling, P.C., Burlington, for Plaintiff-Appellee.
Thomas C. Nuovo and Nicole A. Killoran of Bauer, Gravel, Farnham, Burlington, for Defendant-Appellant.
Present: Reiber, C.J., Skoglund, Burgess and Robinson, JJ., and Bent, Supr. J., Specially Assigned. ROBINSON, J., concurring in part, dissenting in part.
[¶1] Defendant appeals the trial court's refusal to vacate a default judgment against defendant. We hold that the trial court improperly declined to consider the strength of defendant's proffered defenses to the underlying action in reviewing defendant's motion to vacate the default judgment, but that defendant's Rule 60(b) motion did not establish a prima facie case to support a meritorious defense. We therefore affirm the trial court.
[¶2] This dispute arose from a 2009 contract between plaintiff LaFrance Architect, d/b/a Lake Architectural, and defendant Point Five Development South Burlington, LLC. Under this contract, plaintiff was to provide defendant architectural services for the construction of a Walgreens in South Burlington. On January 31, 2011, plaintiff sent an invoice to defendant for services rendered under the contract. On March 4, two days after the invoice was payable and three days after the store opened, defendant sent plaintiff a letter indicating that defendant was terminating plaintiff's services due to an unspecified failure to fulfill the contract and unspecified " significant design errors that caused additional costs." Plaintiff responded by filing notice of a mechanics lien against defendant in the South Burlington Land Records. On March 30, defendant secured a bond to discharge the mechanic's lien, but failed to send a copy of the bond to plaintiff.
[¶3] On June 16, plaintiff commenced action to perfect its mechanics lien by filing in superior court a verified complaint with a request for attachment as well as a claim for damages. Because the parties' contract contained mandatory mediation and arbitration provisions, plaintiff also filed a motion for stay, requesting that the court consider its motion for attachment but then stay proceedings pending mediation and arbitration as required by the contract.
[¶4] On June 27, the Chittenden County sheriff's office personally served defendant corporation's registered agent with the summons, complaint, motion for writ of attachment and related filings, the order setting an attachment hearing on August 10, and a motion for stay. Defendant's registered agent was away, but his law partner accepted service. The return of service was filed with the court on July 1.
[¶5] The registered agent's law partner promptly forwarded a copy of the complaint to defendant's New York attorney with a note flagging the August 10 attachment hearing and a request to let her know if defendant needed assistance with the matter. Without reading the attachment, defendant's New York attorney, in turn, forwarded the message to an agent of defendant. The agent apparently inferred that the email related to the mechanics lien for which defendant was bonding, and did not actually open the email attachments. Neither the New York attorney nor the agent read the pleadings nor took any action to respond or follow up.
[¶6] On August 9 -- the day before the scheduled attachment hearing -- plaintiff moved for default judgment, continuance of the attachment hearing, and consolidation of the attachment hearing with the damages hearing. Plaintiff did not at that time request that the court respond to its motion for a stay.
[¶7] Because defendant never answered or entered an appearance in the case, defendant received no notice of plaintiff's request for default judgment, the trial court's August 10 order entering default, or the hearing scheduled to take evidence on damages. After a hearing on the attachment and damages on September 22, 2011, the trial court issued an order of approval for an attachment in the amount of $69,024.90. On September 30, the court issued a final judgment order awarding plaintiff a judgment of $69,024.90 against defendant, in addition to interest and costs. Defendant did not participate in the hearing or receive notice of the attachment and judgment order.
[¶8] Only after plaintiff commenced an action in New York to domesticate the Vermont judgment did defendant respond by filing a motion in the trial court here. On March 9, 2012, defendant moved for relief from judgment pursuant to Vermont Rules of Civil Procedure 55 and 60. Defendant requested relief " on the grounds of mistake, inadvertence, excusable neglect and the Plaintiff's failure to follow the compulsory Mediation and Arbitration provisions of the contract." The court denied this motion, concluding that this type of " law office error" does not qualify as an excusable " mistake" under Rule 60(b), and explicitly refused to consider any of the defenses on the merits offered by defendant. Defendant appeals.
[¶9] " A motion for relief from judgment brought under [Rule] 60(b)(2) is addressed to the sound discretion of the trial court, and its ruling will not ordinarily be disturbed unless it clearly appears from the record that such discretion was withheld or abused." Desjarlais v. Gilman, 143 Vt. 154, 157, 463 A.2d 234, 236 (1983). In evaluating motions for relief from judgment in the context of default judgments, we have recognized that " [a] judgment by default effectively deprives a defendant of an opportunity to have the merits ... determined through the normal adversary judicial process." Id. Therefore, we noted the general presumption in favor of " resolving
litigation on the merits, to the end that fairness and justice are served." Id. at 158-59, 463 A.2d at 237. On the other side of the scale, however, are the justice system's interests in efficiency and finality of judgments, interests which motivate the rigidity of Rule 60(b). See John A. Russell Corp. v. Bohlig, 170 Vt. 12, 24, 739 A.2d 1212, 1222 (1999) (" [Rule 60] is not an open invitation to reconsider matters concluded at trial, but should be applied only in extraordinary circumstances." (quotation omitted)); Kennerly v. Aro, Inc., 447 F.Supp. 1083, 1087 (E.D. Tenn. 1977) (" [I]t is not the purpose of this Court ... to subvert the plain provisions of [the analogous federal Rule 60] by such liberality and contributing to its becoming meaningless; it is to be construed ... 'to secure the just, speedy, and inexpensive determination of every action.' " (quoting F.R.C.P. 1)).
[¶10] Beyond preserving efficiency and finality, Rule 60(b) respects the discretion of the trial court and the need for flexibility to manage its own docket. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 368 (2d Cir. 2003) (" [T]he legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced 3/4 where every missed deadline was the occasion for the embarkation on extensive trial and appellate litigation to determine the equities of enforcing the [time] bar." ). This consideration is especially compelling in civil cases with sophisticated parties represented by knowledgeable counsel, such as the case here. See In re Town of Killington, 2003 VT 87A, ¶ 17, 19, 176 Vt. 60, 838 A.2d 98 (taking an " appropriately hard line when it comes to determining when neglect that stems from factors totally within the control of a party or its attorney is 'excusable,' " where neglect stemmed from an " internal [law] office procedure breakdown" (quotation omitted)); see also United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994) (affirming denial of a filing extension where delay resulted from legal assistant's ignorance of the rules); cf. Courtyard Partners v. Tanner, 157 Vt. 638, 639, 595 A.2d 287, 288 (1991)(mem.) (lifting a default judgment where defendants' position on the merits was strong and defendants were unrepresented).
[¶11] In Desjarlais, we urged the trial court to consider the following factors when conducting the Rule 60(b) analysis: " whether the failure to answer was the result of mistake or inadvertence, whether the neglect was excusable under the circumstances, and whether the defendant has demonstrated any good or meritorious defense to the plaintiff's claims." 143 Vt. at 157, 463 A.2d at 237. With respect to the " excusable neglect" factor, courts should be particularly circumspect " when the initial fault, at least, appears to be that of a defendant's attorney." Id. Concerning the " meritorious defenses" factor, the trial court should give substantial weight to a meritorious defense when determining whether to vacate a default judgment. See Courtyard Partners, 157 Vt. at 639, 595 A.2d at 288 (" Although the trial court should first consider the degree of defendants' negligence in failing to appear, even a willful default may be excused if defendants' position on the merits is so strong that it would be unjust to affirm the judgment." ).
[¶12] In Courtyard Partners, we reversed the trial court's denial of a tenant's motion to set aside a default-like judgment in favor of a landlord because " defendants' defenses, as presented to this Court, appear to be strong, defendants' negligence was not culpable, defendants were unrepresented, and the ...