Ying v. Heide, 2013 VT 81
Raising children requires a certain amount of tact and discretion. What works for one child will not for the other. One of the magic devices that parents often employ is the five-count—“I’m going to count down from five, and before I get to zero, you better be upstairs.” But the trick of the five-count is that the child has to understand what zero means and the consequences it implies. It also requires the proper circumstances. When the child is overtired, intractable, and unable to separate emotion from process, you don’t want to start counting. It’s not fair to you or to the child, who simply can’t comply. In those cases, you just grab the kid, give them a hug, and carry them upstairs.
The issue in front of the SCOV today is not so different. In 2012, Plaintiff sought to eject her ex-husband from property that she owned and had leased to him. The Defendant disputed the terms of the lease and filed a set of counter-claims. The case was scheduled for a preliminary status conference in June 2012, but attorney for plaintiff asked the court to move the hearing to July. The trial court re-set it for July 5th, but then plaintiff and her attorney failed to appear. At the hearing, counsel for defendant asked that the case be dismissed and withdrew his counterclaims. The trial court granted the motion, largely as a punitive measure toward plaintiff’s counsel for failing to attend.
Now normally, when something like this happens, you, as legal counsel, panic and file a motion for reconsideration or file an appeal, begging the court, any court, to have mercy on your client. If you don’t do this yourself, your client, who has a malpractice attorney on her shoulder, is usually urging you to do this. In this case, however, plaintiff’s attorney did nothing. Instead, he waited twenty-seven days and filed a motion for relief from judgment under Rule 60(b) for excusable neglect.
As the SCOV majority notes this was not a good move. In one fell swoop, plaintiff’s attorney made the case more complicated and far closer than it ever should have been.
Here’s why. The trial court has the discretion to dismiss an action when a plaintiff fails to prosecute or appear at scheduled hearings. But this power is limited by two principles. First, the courts favor deciding cases on the merits. Second, sanctions must be proportionate to the discovery offense. As the SCOV has noted in prior decisions, that means dismissal is a tool of last resort, not first. Bad faith and deliberate disregard for the court’s orders are often pre-requisites to dismissal.
Here no such bad faith or deliberate disregard was in evidence. Plaintiff’s attorney admitted that he failed to put this meeting on his calendar and did not see it on the court’s electronic calendar. This is bad, but not dismissal bad as the SCOV majority opines.
The problem is that plaintiff’s attorney has turned this question into a post-judgment Rule 60(b) issue, which allows for only limited review. This leaves the SCOV majority stymied for an analysis. The majority after some searching latches onto the idea of analogizing the present case to a default judgment.
Using this framework allows the majority to analyze the problem through the Rule 60(b) jurisprudence associated with re-opening default judgments for reasons of excusable neglect. Essentially, this is a backdoor method to give the majority a route back to the analysis that it would have conducted if plaintiff’s attorney had simply appealed the dismissal. This leads to a reversal and presumably (if plaintiff files for it) a re-opening back in the trial court.
It is not a satisfactory result, and the majority is less than happy with the hoops that this case made it jump through, but in the end, three justices apparently felt that substantial justice required this outcome.
The Chief Justice joined by Justice Burgess disagrees. In a sharply worded dissent, the minority excoriates plaintiff’s counsel. The dissent notes that plaintiff’s attorney’s behavior is inconsistent with the standards of excusable neglect. Attorney in this case not only missed the hearing, but he failed to check in with the court, re-open the case or take a straight appeal. He sat on the matter for several weeks and filed an imprudent motion at the last minute. For the dissent, such failure, coupled with the attorney’s subsequent mistakes, justifies the penalty imposed and does not satisfy the criteria of Rule 60(b).
Nevertheless, this view is one vote short of a majority and does not carry the day. The majority’s more forgiving view wins out and plaintiff will get her second cut at the apple.
On a broader and more practical level, today’s decision means that no trial court in the foreseeable future is going to dismiss a case when an attorney misses a hearing. The bar has effectively been raised and the count for the errant children has been raised from five to ten.
For any attorneys out there, keep this decision clean and close to your bedside. It could save your case someday.