Powers v. Hayes

Powers v. Hayes (00-033); 170 Vt. 639; 751 A.2d 781

[Filed 06-Apr-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 00-033

                              MARCH TERM, 2000


Rachel Powers	                       }	APPEALED FROM:
Administratix of Estate of             }
Charles Powers	                       }
                                       }
     v.	                               }	Washington Superior Court
                                       }	
Katherine A. Hayes, Esq.	       }
Barr, Sternberg and Moss, P.C.	       }	DOCKET NO. 497-9-98Wncv	


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


       Appellant was directed by this Court to show cause why the appeal
  should not be dismissed as  untimely filed.  After considering appellant's
  response, we rule as follows.

       On December 3, 1999, Washington Superior Court issued an entry order
  granting defendant's motion  for summary judgment.  On December 23, 1999,
  plaintiff mailed a notice of appeal to the  Washington Superior Court. 
  However, because the court had changed its address, it did not receive  the
  notice until January 11, 2000.  In the meantime, on December 27, 1999,
  defendant had submitted  a proposed judgment to the court.  When the court
  had still not issued a judgment by March 6, 2000,  plaintiff wrote to the
  court requesting the issuance of such a judgment.  The court finally issued
  a  judgment on March 21, 2000.  

       A notice of appeal must be filed within 30 days of the entry of the
  judgment or order appealed from.  See V.R.A.P. 4; 12 V.S.A. § 2383. 
  Plaintiff's notice of appeal was filed on January 11, 2000.  If the  appeal
  period began on December 3, 1999, when the court issued its entry order
  granting summary  judgment, then the notice was not timely.  However, if
  the appeal period began only when the court  issued its judgment order on
  March 21, 2000, then it was timely.  See Lashay v. Dept. of Social and 
  Rehabilitative Serv's, 160 Vt. 60, 63, 625 A.2d 224, 226 (1993) (when
  notice of appeal is filed prior  to entry of final judgment but after
  decision announced, notice is treated as filed on day that final  judgment
  is entered).  

       The appeal period runs from the date of "entry of judgment."  See
  Baker v. Town of Goshen, __ Vt.  __, __, 730 A.2d 592, 594 (1999).  The
  process of creation and entry of judgment is governed by  V.R.C.P. 58:  

       Upon a decision by the court granting or denying relief, the clerk,
  unless the 

 

  Presiding Judge otherwise orders, shall forthwith prepare the judgment
  without  awaiting any direction by the court.  The Presiding Judge shall
  promptly approve and  sign the judgment, and the clerk shall thereupon
  enter it.  A judgment is effective  only when entered as provided in Rule
  79(a).  

       V.R.C.P. 58.  Civil Rule 79(a) requires the clerk to keep a civil
  docket and to enter in it judgments,  showing the date of entry and its
  "nature and subject matter."  The clerk is also required to record  final
  judgments, and certain other orders, in a book for that purpose as soon as
  possible after the  rendition of the judgment or order. See id. at (b). 
  The rule specifically requires action after the court  renders a decision
  in order to reduce that decision to a judgment.  See Baker, ___ Vt. at ___,
  730 A.2d  at 595.  Without such an order, the docket entry of the court's
  decision does not constitute entry  of judgment and does not commence the
  running of the appeal period.  See id. at ___, 730 A.2d  at  596.  

       A summary judgment order is not an "entry of judgment." See Peters v.
  Mindell, 159 Vt. 424, 426,  620 A.2d 1268, ____ (1992) (summary judgment
  order not appealable until entry of final judgment  ); Lashay, 160 Vt. at
  63, 625 A.2d  at 226 (time for appeal did not begin to run at time decision 
  announced in court's summary judgment order, but at time court entered
  final judgment); Fuller v.  M.G. Jewelry, 950 F.2d 1437, 1441 n. 4 (1991)
  (appeal time did not start to run when summary  judgment was issued; it
  started to run only when court ordered judgment to be entered on summary 
  judgment order).  Thus, the appeal period did not begin until the court
  entered judgment on March  21, 2000, and plaintiff's notice was timely.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
	                               John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice