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