Brown v. Tatro, 186-77
| Court | United States State Supreme Court of Vermont |
| Citation | 392 A.2d 380,136 Vt. 409 |
| Decision Date | 11 September 1978 |
| Docket Number | No. 186-77,186-77 |
| Parties | Kenneth W. BROWN, Sr., Administrator of the Estate of Dorothea E. Brown v. Burton J. TATRO and State of Vermont. |
Page 380
v.
Burton J. TATRO and State of Vermont.
Rehearing Denied Oct. 3, 1978.
Page 381
[136 Vt. 410] Bloomer & Bloomer, Rutland, for plaintiff.
B. Michael Frye of Paul, Frank & Collins, Inc., Burlington, for defendant State.
Before [136 Vt. 409] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
[136 Vt. 410] 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[136 Vt. 411] 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,
Page 382
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...
To continue reading
Request your trial
-
Burton v. Jeremiah Beach Parker Restoration and Const. Mgmt. Corp.
...it was within the trial court's plenary power to revise its decision and afford such relief as justice requires); Brown v. Tatro, 136 Vt. 409, 411, 392 A.2d 380, 382 (1978) ( "[A]n interlocutory order or judgment is left within the plenary power of the court that rendered it to afford such ......
-
Goshy v. Morey, 85-177
...Corp., 139 Vt. 44, 47, 421 A.2d 1299, 1301 (1980); Waitt v. Waitt, 137 Vt. 374, 375, 406 A.2d 395, 396 (1979); Brown v. Tatro, 136 Vt. 409, 412, 392 A.2d 380, 382 (1978); Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 82, 370 A.2d 212, 213-14 Our rules and decisions have not clearly requ......
-
Brandt v. Menard
..."not more than one year after the judgment, order, or proceeding was entered or taken." V.R.C.P. 60(b) ; see also Brown v. Tatro, 136 Vt. 409, 411, 392 A.2d 380, 382 (1978) ("The one year bar is an absolute one where it applies ...."). ¶ 5. "The hallmark of Rule 60(b) intervention is the pr......
-
Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc.
...of the particular case. Such a decision will be disturbed only upon a showing of an abuse of that discretion. Brown v. Tatro, 136 Vt. 409, 411-12, 392 A.2d 380, 382 (1978). While the delay in the request for such relief constituted several years, the delay was almost entirely consumed by de......