Fiske v. Perry

Fiske v. Perry (2007-044)

2007 VT 58

[Filed 08-Jun-2007]

                                 ENTRY ORDER

                                 2007 VT 58

                      SUPREME COURT DOCKET NO. 2007-044
    
                               JUNE TERM, 2007

  Dana Fiske                           }         APPEALED FROM:
                                       }
       v.                              }         Windham Superior Court
                                       }  
  David A. Perry, DMD                  }         DOCKET NO. 159-4-05 Wmcv

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

       Appellee moves to dismiss the appeal as untimely filed.  The judgment
  in this case was issued on January 5, 2007, such that the notice of appeal
  would be due February 4, 2007.  See V.R.A.P. 4 (providing thirty days from
  date of judgment to file notice of appeal).  Because this date fell on a
  Sunday, the notice of appeal was required to be filed by Monday, February
  5, 2007.  See V.R.A.P. 26 (providing that computation of time is governed
  by Rule of Civil Procedure 6); V.R.C.P. 6 (providing that, if end of time
  period falls on a Sunday, filing is due the following business day). 
  Appellant did not file her notice of appeal until February 6, 2007. (FN1)  
  Although appellant had faxed a copy of the notice of appeal on February 5,
  2007, Vermont Rule of Appellate Procedure 25(a) does not provide for fax
  filing of a notice of appeal.  Other than personal delivery, Rule 25(a)
  provides only for filing "by mail addressed to the clerk."  Accordingly,
  the appeal is untimely and is dismissed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _____________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice


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                                  Footnotes


FN1.  Appellant filed her notice of appeal with this Court, and while an
  appellant is required to file the notice of appeal with the trial court, if
  a notice of appeal is mistakenly filed with this Court, it is deemed filed
  on that date.  See V.R.A.P. 4.