Altman v. Altman

Altman v. Altman  (98-485); 169 Vt. 562; 730 A.2d 583

[Filed 5-Mar-1999]


                                 ENTRY ORDER


                       SUPREME COURT DOCKET NO. 96-485

                            SEPTEMBER TERM, 1998



Robert Altman	                }	APPEALED FROM:
                                }
                                }
     v.	                        }	Windham Superior Court
                                }	
Jonathan Altman, Carol S. Berry	}
and Putney Pasta Co., Inc.	}	DOCKET NO. S281-6-94 WmCv	



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

       Plaintiff Robert Altman appeals from a superior court order denying
  his V.R.C.P. 60(b) motion  to set aside an earlier judgment dismissing his
  complaint against defendants Jonathan Altman,  Carol S. Berry, and Putney
  Pasta Company.  Plaintiff contends the court erred in: (1) failing to  hold
  an evidentiary hearing; and (2) denying the motion.  We affirm.

       The material facts are largely undisputed.  Plaintiff, a resident of
  New York City, is the father  of defendant Jonathan Altman.  Jonathan
  Altman is married to defendant Carol S. Berry, and both  are officers of
  defendant Putney Pasta Company.  In June 1994, plaintiff filed a complaint
  against  defendants, seeking a declaration as to the ownership of stock in
  the defendant corporation, an  accounting of monies loaned to the
  corporation, and repayment of loans to defendant Jonathan  Altman. 
  Defendants filed an answer denying liability and a counterclaim alleging
  that plaintiff  had breached certain fiduciary duties that he owed as
  trustee of a testamentary trust allegedly  established by plaintiff's
  deceased spouse.  Plaintiff filed an answer denying the counterclaim, and 
  subsequently moved to dismiss it on the ground that it was not brought
  against an opposing party,  but rather against plaintiff in his capacity as
  executor and trustee.  The court initially granted the  motion, but
  subsequently reconsidered its ruling and reinstated the counterclaim.

       In June 1995, plaintiff's counsel moved to withdraw.  Counsel's motion
  stated that plaintiff had  agreed to the withdrawal and intended to enter
  his appearance pro se.  In July, plaintiff filed a  notice with the court
  stating that, effective immediately, he had chosen to represent himself.  
  Plaintiff listed his address on the notice as 900 Park Avenue, New York
  City, New York.  Later  that month, defendants' attorney sent plaintiff a
  letter at the stated address containing a proposed  discovery schedule. 
  When he did not receive a response, counsel sent plaintiff another letter
  in  August concerning the proposed schedule.  Failing again to receive a
  response, defendants'  counsel requested the court to schedule a discovery
  conference.  The court sent plaintiff a notice  on October 6 directing him
  to appear at a status conference on October 18.  Plaintiff failed to 
  appear at the scheduled conference.  Defendants' attorney thereupon moved
  to dismiss plaintiff's  action for failure to prosecute under V.R.C.P.
  41(b)(2).  The court granted the motion and, on  October 31, issued an
  order dismissing plaintiff's action with prejudice.  Notice of the
  dismissal  was mailed to plaintiff the next day. 

 

       On November 29, 1995, plaintiff faxed a request to the superior court
  clerk to reinstate the action.  Plaintiff stated in the request that he had
  attempted to settle the matter "before the 30 days that  you told me I
  had," that his attempt had been unsuccessful, and that he was requesting a 
  reinstatement "to play it safe."  In his request, plaintiff made no mention
  of the October 18  hearing.  Around the same time, plaintiff consulted an
  attorney to consider his options.  In March  1996, the court, treating
  plaintiff's fax as a filed motion to reopen, denied the same.  In July, 
  some four months later, plaintiff, having now retained an attorney, moved
  to strike the October  18 dismissal order pursuant to V.R.C.P. 60(b)(1),
  which authorizes relief from a final judgment  or order because of
  "mistake, inadvertence, surprise, or excusable neglect" if made within a 
  reasonable time.  Plaintiff's affidavit in support of the motion stated for
  the first time that he had  not received actual notice of the October 18
  conference and speculated that the notice had been  sent to his former
  address at 911 Park Avenue.(FN1)  Plaintiff also stated that he had not
  learned  of the dismissal until November, that he had given "the matter
  considerable thought" since then,  and that while he did not "relish"
  litigation among family members he had concluded that he  wanted to have
  his case heard on the merits. 

       In opposition to the motion, defendant Carol Berry filed an affidavit
  stating that plaintiff had been  aware of the scheduled October 18
  conference, which she inferred from the fact that plaintiff had  called her
  to discuss the litigation the day after the conference, and that he had not
  spoken with  her for years prior to the call.  She also stated that the
  mail carrier routinely rerouted and  delivered to plaintiff any mail
  addressed to him at his old address.  

       In a detailed entry order, the court denied the motion, noting that
  plaintiff had the assistance of  counsel in initially formulating and
  litigating his claim, had voluntarily determined to proceed pro  se, had
  stated no reason for his failure to appear in his original request to
  reopen, and by his own  admission had delayed for four months while he
  considered his options, before filing the 60(b)  motion.  Accordingly, the
  court ruled that the delay had been unreasonable, and that plaintiff was 
  therefore not entitled to relief.  This appeal followed.

       We first note that the court's dismissal of plaintiff's lawsuit under
  Rule 41(b)(2) is not before this  Court.  It is the superior court's denial
  of plaintiff's 60(b) motion that we consider.  See R. Brown  & Sons, Inc.
  v. International Harvester Corp., 142 Vt. 140, 142, 453 A.2d 83, 84 (1982) 
  (propriety of judgment of dismissal for failure to comply with discovery
  order, which was not  appealed, was not before court considering Rule 60(b)
  motion for relief from judgment).  Because  plaintiff never appealed from
  the court's order, we are without jurisdiction to consider the  propriety
  of the October 18 dismissal.

       Plaintiff contends the court erroneously denied the motion to set
  aside the dismissal order, and  further erred in failing to hold an
  evidentiary hearing prior to its ruling.  "The decision on a Rule  60(b)
  motion is committed to the sound discretion of the trial court and will
  stand on review  unless the record clearly and affirmatively indicates that
  such discretion was withheld or otherwise  abused."  Bingham v. Tenney, 154
  Vt. 96, 99, 573 A.2d 1185, 1186 (1990).  The burden is on



  the party challenging the denial to demonstrate an abuse of discretion. 
  See id.  Although an  evidentiary hearing should generally precede a
  decision on a 60(b) motion when facts are at issue,  we have held that the
  court may deny a motion without a hearing when it finds the motion totally 
  lacking in merit.  See Manosh v. Manosh, 160 Vt. 634, 635, 648 A.2d 833,
  835 (1993);  Blanchard v. Blanchard, 149 Vt. 534, 537, 546 A.2d 1370,
  1372-73 (1988). 

       Plaintiff argues here, as he did below, that his failure to appeal the
  original dismissal order, his  additional failure to appeal the court's
  March denial of his request to reopen, and his dilatory  60(b) motion
  months later, should be excused because of his pro se status.  The trial
  court was  unpersuaded, noting that plaintiff had been previously
  represented by counsel, could have retained  a lawyer at any time after his
  attorney withdrew, and voluntarily chose instead to represent  himself. 
  See Bingham, 154 Vt. at 99, 573 A.2d  at 1186 (Rule 60(b) will not relieve a
  party from  its free, calculated, and deliberate choices).  Furthermore, as
  the court also observed, plaintiff  offered no basis for relief in his
  initial request to reopen, and intentionally delayed an additional  four
  months after the court's ruling before filing the 60(b) motion.  See
  Richwagen v. Richwagen,  153 Vt. 1, 4, 568 A.2d 419, 421 (1989) (Rule 60(b)
  not intended to relieve a party from tactical  decisions which in
  retrospect were ill-advised).  In the light of these circumstances, we
  cannot  conclude that the court's broad discretion was withheld or
  otherwise abused.  See Bingham, 154  Vt. at 99, 573 A.2d  at 1186. 

       Plaintiff also contends the court erred in failing to hold an
  evidentiary hearing, particularly in  view of the conflicting allegations
  in the affidavits concerning plaintiff's knowledge of the October 
  conference.  However, the court did not find that plaintiff had received
  such notice, nor did it base  its decision on such a finding.  Rather, its
  ruling was premised on the undisputed material facts  surrounding
  plaintiff's dilatory efforts to seek relief from the order of dismissal. 
  Thus, there were  no material disputed facts requiring an evidentiary 
  hearing.  See Manosh, 160 Vt. at 635, 648 A.2d  at 835.

       The law favors the disposition of disputes after a hearing on the
  merits. Dougherty v. Surgen, 147  Vt.365, 366, 518 A.2d 364, 365 (1986). 
  Nonetheless, the law's concomitant interest in  promoting the certainty and
  finality of judgments imposes limits on the indulgence which may be  sought
  in relief of final orders. See Richwagen, 153 Vt. at 4, 568 A.2d  at 421
  (although relief  under Rule 60(b) should be liberally granted to avoid
  hardship, need for certainty and finality of  judgment places limits on
  availability of relief).  The court here found the explanations offered  by
  plaintiff for his delay in filing the Rule 60(b) motion to be unreasonable. 
  Thus, it was within  the court's discretion to deny the motion without a
  hearing.  See Blanchard, 149 Vt. at 537, 546 A.2d  at 1372-73 (court may
  deny Rule 60(b) motion without hearing when it finds motion "totally 
  lacking in merit").  

       We have held that the court deciding a Rule 60(b) motion should hold a
  hearing where there has  been a dismissal in the nature of a default or
  nonsuit.  See Goshy v. Morey, 149 Vt. 93, 99, 539 A.2d 543, 546 (1987). 
  Nevertheless, our rules plainly require that a moving party who wishes  to
  present evidence must submit a request for a hearing with the motion or
  within five days  thereafter, together with a statement of the evidence to
  be offered.  See V.R.C.P. 7(b)(4) and  78(b)(2).  Indeed, the Reporter's
  Notes to the 1990 amendments to the rules recognize that under  Goshy,
  evidence as to "excusable neglect" is nearly always relevant and,
  therefore, "the right to  an evidentiary hearing will guarantee that every
  motion under Rule 60(b) will result in a hearing  if requested."  V.R.C.P.
  7, Reporter's Notes - 1990 Amendment (emphasis added).  In this case, 
  however, plaintiff failed to request a hearing or to identify the evidence
  he hoped to offer.   Accordingly, any right to a hearing was waived.  

       Affirmed.  

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                                  Footnotes

FN1.   Plaintiff does not contend he did not have constructive notice.

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                                 Dissenting


       DOOLEY, J., dissenting.   For three main reasons, I am unable to
  concur in the Court's


 

  decision affirming the refusal to set aside an order dismissing plaintiff's
  complaint.  First, the  order dismissing the complaint was clearly
  improper.  On defendant's motion, the superior court  scheduled a hearing
  on a "status conference."  Nothing in the notice suggests that the
  conference  would consider whether to dismiss plaintiff's complaint for
  failure to make progress, or that the  consequence of nonappearance would
  be dismissal.  When plaintiff, then proceeding pro se, failed  to appear at
  the discovery conference, the court dismissed the complaint under V.R.C.P.
  41(b)(2),  apparently based on an oral motion made at the hearing.  The
  grounds for this ultimate sanction  were plaintiff's failure to appear at
  the status conference or to communicate with defendants'  counsel.

       Plaintiff had no notice that the failure to appear could result in
  dismissal.  Failure to communicate  with defendant, without more, was not
  grounds for dismissal.  See V.R.C.P. 26(h) (when one  party fails to agree
  to discovery schedule, opposing party may move forward with discovery under 
  V.R.C.P. 26).   Nor could this sanction be imposed for violations of the
  discovery rules without  specific findings of bad faith or deliberate and
  willful disregard of court orders, and prejudice to  defendant.  See John
  v. Medical Ctr. Hosp. of Vt., 136 Vt. 517, 519-20, 394 A.2d 1134, 1135 
  (1978).  The court never made those findings; without some kind of hearing,
  it could not.

       Nor could the court invoke Rule 41(b)(2) based on an ex parte oral
  motion made without notice  at the hearing.  Normally, motions must be in
  writing.  See V.R.C.P. 7(b)(1).  Although there  is a limited exception for
  motions made "during a hearing or trial," the exception does not allow  a
  party "to seek a determination on any matter other than that for which the
  hearing was noticed  to be heard."  Simmon v. Bond, 634 P.2d 1148, 1151
  (Kan. Ct. App. 1981); see also Mitchell  v. Public Serv. Coordinated
  Trans., 13 F.R.D. 96, 97 (D.N.J. 1952) (under substantially identical 
  federal rule, counsel may not, without notice, make oral motions in a
  pretrial conference); Oler  v. Supervised Estate of Huckleberry, 504 N.E.2d 349, 351 (Ind. Ct. App. 1987) (oral motions,  made in a hearing, may not
  seek a determination upon matter other than that for which the hearing  was
  noticed).

       Plaintiff's failure to appear at the discovery conference remains a
  major reason why the superior  court, and this Court, have denied him
  relief.  Even in its brief affirmance order, the majority  relies upon
  plaintiff's failure to offer an excuse for his nonappearance.  Since the
  order exceeded  the power of the court, and could not be justified by the
  nonappearance, I fail to see how the  reasons for the nonappearance are
  particularly relevant.  The court should have struck the  dismissal
  irrespective of whether plaintiff had grounds for not appearing.

       Second, as we stated in Goshy v. Morey, 149 Vt. 93, 99, 539 A.2d 543,
  547-48 (1987):

  At least where there has been a dismissal by default or in the nature
  of nonsuit, we  hold that the court deciding the Rule 60(b) motion must
  hold a hearing to allow  oral argument and, if necessary, the taking of
  evidence.  An exception is present  where the issues have been fully
  argued, and evidence taken if applicable, in the  ruling on the underlying
  dismissal or default.  Where a hearing is required, the  decision must
  state such findings and conclusions as will enable us to determine the 
  basis for the decision and to show how the court has used its discretion.

  Goshy involved a dismissal for failure to identify an expert witness in a
  medical malpractice case.  Its holding is directly applicable here.  The
  superior court held no hearing on the Rule 


 

  60(b) motions in this case.  Thus, the denial of the motions violates the
  Goshy rule.  If anything,  the need for a hearing was much greater here,
  than in Goshy, because plaintiff was unrepresented  in filing the original
  motion for relief from judgment and there was never a hearing at which both 
  sides appeared.

       In holding to the contrary, the Court has relied upon Manosh v.
  Manosh, 160 Vt. 634, 648 A.2d 833 (1993) and Blanchard v. Blanchard, 149
  Vt. 534, 546 A.2d 1370 (1988).  Neither of these  cases involved a rule
  60(b) motion to reopen a nonsuit, and, as a result, neither is applicable
  here.  Goshy announced a procedural rule for the exact circumstances
  present here - dismissal of a  complaint as a sanction for inaction or
  failure to comply with a court order -, and the superior  court refused to
  reopen without complying with the Goshy procedural requirement.

       Third, I am not as convinced as the majority that the superior court's
  skepticism about plaintiff's  factual assertions played no part in its
  decision.  Plaintiff stated in an affidavit that he had not  received
  notice of the discovery conference, probably because he had moved. 
  Defendants filed  a counter-affidavit stating why they believed he knew of
  the conference.  In its decision, the court  described these affidavits and
  added "the court's file includes no indication that the Postal Service 
  returned the notice mailed to the plaintiff."  The added sentence suggests
  that the court may have  been more favorable to plaintiff's position if it
  believed his assertion that he did not receive notice  of the hearing.  If
  that suggestion is correct, the court resolved a factual dispute without a
  hearing.

       We have the power to remand a case to prevent a failure of justice and
  do so when the  circumstances warrant it.  See Courtyard Partners v.
  Tanner, 157 Vt. 638, 639, 595 A.2d 287,  288 (1991).  The circumstances
  warrant it in this case.





Dissenting:	                         BY THE COURT:



_________________________________	 ______________________________________
John A. Dooley, Associate Justice	 Jeffrey L. Amestoy, Chief Justice

                                         ______________________________________
                                         James L. Morse, Associate Justice

                                         ______________________________________
                                         Denise R. Johnson, Associate Justice

                                         ______________________________________
                                         Marilyn S. Skoglund, Associate Justice