Brown v. Tatro

• Decision Date: 11 September 1978
• Docket Number: No. 186-77,186-77
• Citation: 392 A.2d 380,136 Vt. 409
• Court: Vermont Supreme Court
• Parties: Kenneth W. BROWN, Sr., Administrator of the Estate of Dorothea E. Brown v. Burton J. TATRO and State of Vermont.

Page 380

392 A.2d 380

136 Vt. 409

Kenneth W. BROWN, Sr., Administrator of the Estate of Dorothea E. Brown v. Burton J. TATRO and State of Vermont.

No. 186-77.

Supreme Court of Vermont.

Sept. 11, 1978.

Rehearing Denied Oct. 3, 1978.

Bloomer & Bloomer, Rutland, for plaintiff.

B. Michael Frye of Paul, Frank & Collins, Inc., Burlington, for defendant State.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

This case was previously before us on interlocutory appeal, resulting in affirmance of a summary judgment below dismissing the action as to the defendant State of Vermont. Brown v. Tatro, 134 Vt. 248, 356 A.2d 512 (1976). Following remand, on December 22, 1976, plaintiff voluntarily dismissed his claim against defendant Tatro, so that the summary judgment appealed from, filed March 6, 1975, became a final judgment on that date. V.R.C.P. 54(b). A second attempted appeal was dismissed as begun by defective notice, on April 8, 1977, and the cause was then remanded to Caledonia Superior Court, "without prejudice to any motion plaintiff may file pursuant to V.R.C.P. 60(b)." Such a motion was filed April 12, 1977, and denied June 30, 1977. Plaintiff now appeals from that denial.

The original stated claim against the State of Vermont was based upon alleged negligence in issuing a driver's license to defendant Tatro, causing an accident that resulted in the death of plaintiff's intestate. The legal effect of a claimed governor's pardon for prior offenses of driving while intoxicated was decided in our first opinion. The underlying issue now involved is whether the pardon in question was in fact issued to defendant Tatro. Plaintiff claims that the defendant here is Burton J. Tatro of Wolcott, whereas the pardon referred to one Burton F. Tatro of Newport. He asserts that this involves a question of fact calling for relief from final judgment under V.R.C.P. 60(b) (6), as within the phrase "any other reason." He also pleads ground (1), mistake, inadvertence and excusable neglect, and ground (2), newly discovered evidence, with respect to this matter. The State says the motion below was untimely correctly denied as a matter of discretion, and without effect on the original order, which was based, in part, upon lack of causation. See Rivers v. State of Vermont, 133 Vt. 11, 328 A.2d 398 (1974).

Under V.R.C.P. 60(b), motions for relief from final judgment, on Any ground, must be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year from entry of judgment. The one year bar is an absolute one where it applies, but we hold that it did not here apply. The State's motion for summary judgment was granted March 6, 1975, and plaintiff's motion for relief from judgment was filed April 12, 1977, more than two years later. However, under V.R.C.P. 54(b), the summary judgment order did not become "final" until December 22, 1976, when the claim against Tatro was dismissed and all issues and parties had been disposed of. The initial clause of V.R.C.P. 60(b) makes clear that it is a Final judgment, order or proceeding from which relief is afforded. Prior to becoming final as defined in V.R.C.P. 54(b), an interlocutory order or judgment is left within the plenary power of the court that rendered it to afford such relief as justice requires; it is not brought within the restrictive provisions of 60(b). 7 Moore's Federal Practice P 60.20, at 242 (2d ed. 1975). The one year period, therefore, began to run on December 22, 1976, and the motion below was within, not without, that period.

Whether the motion was brought within a reasonable time, however, in light of when the plaintiff acquired knowledge of the alleged discrepancy in names, is another question. The test is whether the trial court here exercised sound discretion under all factors and circumstances, including the factor of reasonable time. We disturb this discretionary action only for abuse. 7 Moore's Federal Practice P 60.28(2), at 405 (2d ed. 1975); see Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 370 A.2d 212 (1977). While the record below...