Town of Washington v. Emmons

Town of Washington v. Emmons (2006-105)

2007 VT 22

[Filed 29-Mar-2007]

                                 ENTRY ORDER

                                 2007 VT 22

                      SUPREME COURT DOCKET NO. 2006-105

                             DECEMBER TERM, 2006


  Town of Washington                   }         APPEALED FROM:
                                       }
      v.                               }
                                       }         Orange Superior Court
                                       }
  Bernard C. Emmons and                }
  Theresa A. Emmons                    }
                                       }         DOCKET NO. 18-1-01 OeCv

                                                 Trial Judge:  Mary Miles 
                                                               Teachout

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Bernard Emmons appeals the denial of a motion for relief from
  judgment, contending that the trial court lacked jurisdiction to impose the
  judgment in the first place because plaintiff Town lacked standing to
  initiate the case.  Accordingly, argues Mr. Emmons, the trial court abused
  its discretion in refusing to grant relief from a settlement ultimately
  agreed upon between him, acting as a pro se defendant, and the Town.  We
  affirm.

       ¶  2.  The Town of Washington brought suit against Bernard and Theresa
  Emmons in 2001 to compel them to clean up junk motor vehicles and other
  solid waste stored on their property and encroaching on an adjacent public
  right-of-way.  Some seven years earlier, in 1994, the Vermont
  Transportation Board obtained a permanent injunction against the Emmonses'
  interference with the highway and their use of the site as an illegal
  junkyard. (FN1)  At about the same time, the Vermont Agency of Natural
  Resources issued an administrative order requiring that the Emmonses desist
  from operating a commercial solid waste facility at the site without a
  permit, that they remove and properly dispose of all of the material dumped
  there, and that they pay a $10,000 fine. (FN2)   Although not a party to
  either proceeding, the Town, as part of its 2001 complaint against the
  Emmonses,  alleged violations and sought enforcement of the injunction and
  the administrative order, and sought an order and reimbursement for Town
  abatement of public-health hazards allegedly caused by the illegal dump
  operations.                              
   
       ¶  3.  The Emmonses never disputed the town's allegations of their
  past and continuing violation of those orders and the solid waste storage
  laws.  Acting pro se, the Emmonses entered into a stipulation with the Town
  in July 2002, reduced to a court order, in which they agreed to remove
  certain materials from their property or be subject to a civil penalty of
  $50 per day for noncompliance.  After failing to meet the terms of that
  agreement, Mr. Emmons signed a second stipulation in February 2004, also
  reduced to court order, in which he acknowledged that ongoing noncompliance
  rendered the Emmonses liable for up to $26,550 in penalties, and further
  agreed that, if the property was not cleaned up by July 2004, as promised,
  judgment would be entered against them in the amount of $33,450.  The court
  subsequently entered judgment for the Town for $33,450 on August 3, 2004.  

       ¶  4.  More than a year later, after consulting with an attorney,
  the Emmonses filed a motion for relief from judgment pursuant to Vermont
  Rule of Civil Procedure 60(b).  The motion alleged that the Town did not
  have standing to bring the original action, and the court did not have
  authority to award a civil penalty to the Town.  The motion was granted on
  other grounds as to Theresa Emmons but denied as to Bernard Emmons.  Mr.
  Emmons appealed. (FN3)

       ¶  5.  Mr. Emmons' principal argument in his Rule 60(b) motion, and in
  this appeal, is that the Town lacked standing to enforce the two previous
  orders when the Town had no party status in those proceedings.  See
  Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341, 693 A.2d 1045, 1048
  (1997) ("The prudential elements of standing include the general
  prohibition on a litigant's raising another person's legal rights . . .
  .").  Furthermore, according to Emmons, both prior actions were brought
  under statutes with enforcement authorization specifically assigned to
  state agencies which should be construed to exclude enforcement by all
  others, including municipalities.  Emmons correctly points out that the
  administrative order was issued pursuant to authority granted the Secretary
  of the Agency of Natural Resources in Title 10, under which only the
  Secretary (represented by the Attorney General) may enforce such orders. 
  See 10 V.S.A. §§ 8003, 8221 (providing that the Secretary may take action
  to enforce statutes including those related to solid waste and providing
  that civil enforcement actions shall be brought by the Attorney General). 
  Emmons also notes that the Transportation Board's action was brought
  pursuant to 24 V.S.A. § 2243, which grants authority to the Agency of
  Transportation (FN4) to enjoin the operation of junkyards that are in
  violation of state law and "obtain compliance with its orders . . . by a
  petition to the superior court."  In the absence of standing by the Town,
  says Emmons, the court lacked jurisdiction to enter judgment.  See Ihinger
  v. Ihinger, 2003 VT 38, ¶¶ 5, 11, 175 Vt. 520, 824 A.2d 601 (mem.)
  ("standing is a jurisdictional issue").  Accepting, arguendo, that the Town
  lacked standing to bring this case, we nevertheless find that Emmons is
  barred from raising that issue in a Rule 60(b) motion. (FN5) 
                                          
       ¶  6.  Mr. Emmons' motion for relief from judgment, having been
  filed more than a year after judgment was entered, is limited to
  consideration under Rule 60(b) subsections (4) (judgment is void), (5)
  (judgment has been satisfied), and (6) (any other reason justifying
  relief).  See V.R.C.P. 60(b) ("The motion shall be made within a reasonable
  time, and for reasons (1), (2), and (3) not more than one year after the
  judgment, order, or proceeding was entered or taken.").  Emmons cites
  several cases for the proposition that jurisdictional defects, including
  standing, may be raised at any time and are a basis for voiding the
  judgment.  E.g., Ihinger, 2003 VT 38, ¶ 11 (dismissing appeal where
  appellants lacked standing).  The cases cited, however, deal only with
  direct appeals; they do not address Rule 60(b) collateral attacks upon a
  judgment.  We have previously determined that a party may not collaterally
  attack a judgment on jurisdictional grounds through Rule 60(b)(4).  See
  Donley v. Donley, 165 Vt. 619, 619-20, 686 A.2d 943, 945 (1996) (mem.) ("A
  judgment is not void on standing or jurisdictional grounds when a party had
  a prior opportunity to contest on those grounds but failed to do so."). 

       ¶  7.  Mr. Emmons argues for liberal application of Rule 60(b)(6) to
  grant relief from a judgment he says is unjust under the circumstances. 
  See Cliche v. Cliche, 143 Vt. 301, 306, 466 A.2d 314, 316 (1983) ("[Rule]
  60(b)(6) is, by its very nature, invoked to prevent hardship or injustice
  and thus is to be liberally construed and applied.").  Emmons alleges
  injustice for imposition of a judgment that he agreed to when he was
  apparently unaware of the potential problems with the Town's case.  We
  begin by noting that Emmons' pro se status at the time of the agreements
  and judgment is not dispositive.  Unlike cases in which we have found pro
  se status determinative to granting a Rule 60(b)(6) motion, this case is
  not one in which a party was taken advantage of by strict application of
  rules of procedure.  See, e.g., Bingham v. Tenney, 154 Vt. 96, 101-02, 573 A.2d 1185, 1187-88 (1990) (reversing denial of relief from summary judgment
  when pro se party opposed summary judgment with contested facts but failed
  to file an affidavit); Vahlteich v. Knott, 139 Vt. 588, 590-91, 433 A.2d 287, 288-89 (1981) (reversing denial of relief from judgment against a pro
  se litigant who failed to answer a complaint because a co-defendant's
  answer purported to speak for both defendants).  Pro se, or not, Emmons had
  the same opportunity as any litigant to contest the Town's standing and the
  trial court's jurisdiction before stipulating to judgment.  The same result
  obtains as in our analysis under Rule 60(b)(4): simple failure to raise
  these issues is not an "extraordinary circumstance" justifying relief from
  judgment under Rule 60(b)(6).  Donley, 165 Vt. at 620, 686 A.2d  at 945
  (citing 11 C. Wright, et al., Federal Practice and Procedure § 2864, at
  357, 359-60 (2d ed. 1995)).

        
       ¶  8.  We will affirm the trial court's ruling on a Rule 60(b)(6)
  motion unless the record clearly and affirmatively indicates that its
  discretion was abused or withheld.  Adamson v. Dodge, 174 Vt. 311, 326, 816 A.2d 455, 468 (2002).  We conclude the court's discretion was properly
  exercised here.  We do not find extraordinary circumstances warranting
  relief by virtue of the imposition of civil penalties, despite the absence
  of a request for such penalties in the Town's complaint.  Contrary to his
  claim of insufficient notice of the possibility of civil penalties
  amounting to a deprivation of due process, Emmons agreed to such penalties
  as part of his initial stipulation with the Town.  Also unavailing is
  Emmons' claim that the $10,000 penalty in the administrative order
  precluded imposition of any additional civil penalty for the "same
  violation";  the argument fails to recognize that the order penalized
  violations occurring as of its 1994 date, and that subsequent solid waste
  storage violations through 2004 cannot be the same violation as in 1994. 
  In sum, we find no undue hardship or injustice to Mr. Emmons to render the
  denial of relief from judgment an abuse of discretion.  


       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice

                                       _______________________________________
                                       William D. Cohen, Superior Judge,
                                       Specially Assigned


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Vt. Transp. Bd. v. Emmons, Docket No. S6-94 OeC (Teachout, J.) (Apr.
  18, 1994).

FN2.  Sec'y, Agency of Natural Res. v. Emmons, Admin. Order (Feb. 1, 1994).

FN3.  Both Mr. and Mrs. Emmons are listed on the notice of appeal.  However,
  the basis for Mrs. Emmons' appeal is unclear as all of the appellants'
  arguments focus on the denial of relief from judgment as to Mr. Emmons
  (Mrs. Emmons passed away during the pendency of this appeal).  We therefore
  refer to all of the appellants' arguments as those of Mr. Emmons.

FN4.  The statute was amended in 1994, changing "transportation board" to
  "agency of transportation."  1993, No. 172 (Adj. Sess.), § 31.

FN5.  The Town argues that other claims in its complaint may be read more
  liberally as asserting a general complaint for enforcement and cost
  recovery to vindicate municipal health and safety laws, which the Town is
  authorized to enforce under state law.  See 24 V.S.A. §§ 2121 (granting
  municipalities power to seek injunction for public nuisances), 2291(12)
  (providing municipalities power to "regulate or prohibit the storage or
  dumping of solid waste"), 2297a (empowering municipalities with enforcement
  of solid waste ordinances).  In light of our holding, we need not reach
  this argument.