Casella Construction, Inc. v. Department of Taxes

Casella Construction, Inc. v. Dept. of Taxes (2003-269); 178 Vt. 61; 
869 A.2d 157

2005 VT 18

[Filed 04-Feb-2005]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 18

                                No. 2003-269


  Casella Construction, Inc.	                 Supreme Court

                                                 On Appeal from
       v.	                                 Rutland Superior Court


  Department of Taxes	                         November Term, 2004


  Richard W. Norton, J.

  John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for
    Plaintiff-Appellee.

  William H. Sorrell, Attorney General, and Danforth Cardozo, III, Special
    Assistant Attorney General, Montpelier, for Defendant-Appellant. 


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

       ¶  1.  ALLEN, C.J. (Ret.), Specially Assigned.  Pursuant to a motion
  for reargument filed by appellee Casella Construction, Inc. from our
  decision in Casella Construction, Inc. v. Dep't of Taxes, No. 03-269 (Vt.
  March 10, 2004) (unpub. mem.), we consider the question of our jurisdiction
  over this appeal.  Casella maintains that we lack jurisdiction because the
  Department of Taxes filed an untimely notice of appeal.  As discussed
  below, we conclude that the Department's notice of appeal was timely under
  V.R.A.P. 4, and we therefore have jurisdiction. 
   
       ¶  2.  The superior court issued its final judgment in this matter
  on May 7, 2003.  On June 6, 2003, the Department hand-delivered a notice of
  appeal to this Court.  The Department also mailed a notice of appeal to the
  superior court, which that court received on June 9, 2003.  On June 30,
  this Court sua sponte dismissed the appeal for lack of jurisdiction,
  concluding that the Department's notice of appeal had been untimely filed. 
  In an August 2003 entry order, we granted the Department's request to
  reinstate its appeal, indicating that we would consider the jurisdictional
  question with the merits.  In a March 2004 entry order, we concluded that
  we had jurisdiction, and we  reversed the superior court's decision. 
  Casella Constr., Inc. v. Dep't of Taxes, No. 03-269 (Vt. March 10, 2004)
  (unpub. mem.).  In August 2004, we granted Casella's motion for reargument
  on the question of our jurisdiction, and we now reiterate that we have
  jurisdiction over this appeal. 

       ¶  3.  The timely filing of a notice of appeal is a jurisdictional
  requirement.  In re Shantee Point, Inc., 174 Vt. 248, 259, 811 A.2d 1243,
  1252 (2002).  Pursuant to V.R.A.P. 4, a notice of appeal must be filed with
  the superior or district court within thirty days of the entry of judgment
  or order appealed from.  Rule 4 also provides that "[i]f a notice of appeal
  is mistakenly filed in the Supreme Court, the clerk of the Supreme Court
  shall note thereon the date on which it was received and transmit it to the
  clerk of the superior or district court, and it shall be deemed filed in
  the superior or district court on the date so noted."  The Reporter's Notes
  indicate that this language was added to the rule to address the "common
  error of a notice of appeal filed in the Supreme Court rather than in the
  trial court."  Reporter's Notes, V.R.A.P. 4. 
   
       ¶  4.  Casella maintains that the Department's failure to file its
  notice of appeal in the right place, at the right time, deprives this Court
  of jurisdiction.  According to Casella, the Department's notice of appeal
  cannot be considered "mistakenly" filed in this Court under Rule 4 because
  the Department also filed a notice of appeal in the superior court, which
  indicates that it knew of its obligation to file the notice there. 

       ¶  5.  We decline to interpret Rule 4 so narrowly.  See In re Hignite,
  2003 VT 111, ¶ 9, 14 Vt. L. Wk. 359, 844 A.2d 735 (mem.) (noting that
  "appeal rights are to be liberally construed in favor of persons exercising
  those rights") (citing Peabody v. Home Ins. Co., 170 Vt. 635, 638, 751 A.2d 783, 786 (2000) (mem.)).  Considering the purposes served by a notice of
  appeal, and in light of the rule's plain language, we conclude that when a
  notice of appeal is filed with this Court within the proper time period,
  and not with the trial court during that same period, it is "mistakenly
  filed" within the meaning of Rule 4.  We reject Casella's proposed
  construction of Rule 4 because it would not serve the rule's purposes, it
  would produce anomalous results, and it would put this Court in the
  untenable position of ascertaining the intent of parties who file notices
  of appeal. 
   
       ¶  6.  A notice of appeal serves two functions-it informs "the
  parties and the tribunals concerned that the proceedings are not concluded
  so they may respond accordingly," and it invokes "appellate jurisdiction by
  accomplishing the transfer of the cause to the reviewing authority while
  the question sought to be reviewed remains open to appeal."  Badger v.
  Rice, 124 Vt. 82, 84-85, 196 A.2d 503, 505 (1963).  We require strict
  adherence to deadlines for filing notices of appeal primarily to serve the
  goal of finality.  In re Lund, 2004 VT 55, ¶ ¶ 3, 7, 15 Vt. L. Wk. 201,
  857 A.2d 279 (mem.); see also Files v. City of Rockford, 440 F.2d 811, 814
  (7th Cir. 1971) (discussing development of federal rules regarding time for
  filing appeal, and stating that "[t]he basic rationale for insistence upon
  timely filing is the necessity for providing a precisely ascertainable
  point of time at which litigation comes to an end").  The  purposes served
  by a notice of appeal were accomplished by the Department's filing here,
  and the filing occurred within thirty days of the date of the trial court's
  order.  See In re Shantee Point, Inc., 174 Vt. at 259, 811 A.2d  at 1252
  (finding jurisdiction over appeal from superior court decision where
  cross-appellant filed notice of appeal in environmental court, and later
  filed "clarifying letter" with Supreme Court docket clerk, within proper
  time period for filing a cross-appeal).

       ¶  7.  We do not consider a party's decision to file a notice of
  appeal in a particular court critical to the purposes served by the rule,
  nor are we persuaded that the intent behind such a decision, assuming that
  it can be ascertained, should determine whether a litigant's right to
  appeal has been preserved.  This Court is the wrong place to file a notice
  of appeal in the first instance, regardless of a party's intent. 

       ¶  8.  The U.S. Supreme Court addressed an analogous situation in
  Smith v. Barry, 502 U.S. 244 (1992).  In that case, the Court held that a
  document that was intended by a litigant to serve as his appellate brief
  could serve as a notice of appeal under F.R.A.P. 3.  The Court rejected the
  argument that appellant's motivation in filing the document was relevant to
  determining whether the requirements of Rule 3 had been satisfied.  Barry,
  502 U.S.  at 248.  As the Court explained, 

    While a notice of appeal must specifically indicate the litigant's
    intent to seek appellate review, the purpose of this requirement
    is to ensure that the filing provides sufficient notice to other
    parties and the courts.  Thus, the notice afforded by a document,
    not the litigant's motivation in filing it, determines the
    document's sufficiency as a notice of appeal.  If a document filed
    within the time specified by Rule 4 gives the notice required by
    Rule 3, it is effective as a notice of appeal.  

  Id. at 248-49.  
   
       ¶  9.  We find the U.S. Supreme Court's reasoning applicable here. 
  In addition to the impracticality of having this Court attempt to ascertain
  each party's intent when a notice of appeal is misfiled in this Court, we
  can discern no purpose that would be served by such an examination.  It is
  the act of filing a notice of appeal within a thirty-day period, not the
  litigant's motivation in filing it in a particular court, that determines
  its timeliness under Rule 4.  See In re Lund, 2004 VT 55, ¶ 3.  This is
  particularly true in light of the plain language of Rule 4, which allows a
  notice of appeal to be considered filed in the trial court on the date that
  it is misfiled in this Court. 

       ¶  10.  Like V.R.A.P. 4, the federal rules expressly provide that if a
  notice of appeal is "mistakenly filed" in the court of appeals, the clerk
  of the court must note the date on which it was received, and send it to
  the district court clerk, and the notice is then considered filed in the
  district court on the date so noted.  See F.R.A.P. 4(d).  Under the federal
  rules, a notice of appeal that is mistakenly filed with the court of
  appeals within the appropriate time period is considered timely filed. 
  See, e.g., Barry, 502 U.S.  at 249.  Casella correctly notes that under the
  federal rules, a litigant is not required to file a copy of his notice of
  appeal with the appellate court, as under our rules.  Compare V.R.A.P.
  3(b)(1) (appellant must serve notice of appeal upon clerk of Supreme Court
  and on each party), with F.R.A.P. 3(d)(1) (district clerk must serve notice
  of the filing of a notice of appeal on appeals court and each party).  It
  does not necessarily follow, however, that the use of the words "mistakenly
  filed" in V.R.A.P. 4 therefore require this Court to evaluate a litigant's
  motivation before allowing an appeal to proceed. 
   
       ¶  11.   Casella's approach would allow certain litigants to appeal,
  while denying that right to other similarly situated litigants-all based on
  a consideration that is irrelevant to the purposes served by the rule.  We
  do not think that the language of Rule 4 supports such an arbitrary result. 
  In this case, the Department filed its notice of appeal with this Court
  within thirty days of the trial court's order, and in light of the
  foregoing discussion, we consider it timely filed under V.R.A.P. 4.  We
  therefore have jurisdiction over this appeal.  Given this, our entry order
  decision of March 10, 2004, which reversed the superior court's order,
  stands.
         
       The Department's notice of appeal was timely filed pursuant to
  V.R.A.P. 4, and we therefore have jurisdiction.  The decision of the
  superior court is reversed consistent with our opinion in Casella
  Construction, Inc. v. Dep't of Taxes, No. 03-269 (Vt. March 10, 2004)
  (unpub. mem.).


                                       FOR THE COURT:


                                       _______________________________________
                                       Chief Justice (Ret.), Specially Assigned


------------------------------------------------------------------------------
                                 Dissenting


       ¶  12.  REIBER, J., dissenting.  I respectfully dissent.  I agree
  that the Court cannot be put in the position of ascertaining the intent of
  those who file appeals.  Based on this consideration, the majority's
  conclusion is sound from a policy point of view.  But, at the same time, we
  ought to avoid ignoring the obvious meaning of words when interpreting the
  rules of appellate procedure.  See State v. Carroll, 2003 VT 57, ¶ 7, 175
  Vt. 571, 830 A.2d 89 (mem.) (construing a statute and presuming that
  "statutory language is inserted advisedly and not intended to create
  surplusage").
   
       ¶  13.  "Mistaken" is a word that can mean only one thing-an
  accident.  In choosing the word "mistakenly," the rule-makers were willing
  to allow litigants some latitude when an appeal is filed in the wrong
  court.  See In re S. Burlington-Shelburne Highway Project, 174 Vt. 604,
  605, 817 A.2d 49, 51 (2002) (mem.) ("The Legislature is presumed to have
  intended the plain, ordinary meaning of the adopted statutory language."). 
  But we change the meaning of the rule if whenever a notice of appeal is
  filed with this Court within the proper time period and not the trial
  court, we construe the notice of appeal as "mistakenly" filed.  Although
  appeal rights should be liberally construed, In re Hignite,  2003 VT 111,
  ¶ 9, 14 Vt. L. Wk. 359, 844 A.2d 735 (mem.), we should not rewrite rules
  without following the procedures for doing so.  See In re Lund, 2004 VT 55,
  ¶ 5, 15 Vt. L. Wk. 201, 857 A.2d 279 (mem.) (refusing to make a defacto
  enlargement of the appeals period by strictly construing the excusable
  neglect standard in V.R.A.P. 4).
        
       ¶  14.  In this matter, where a jurisdictional challenge was raised,
  we should adhere to the rule's plain language and remand the case to the
  trial court to decide whether the appellant mistakenly filed the notice of
  appeal in this Court.  I therefore dissent.



                                       ___________________________________
                                       Associate Justice