Cody v. Cody's Estate

• Court: Vermont Supreme Court
• Writing for the Court: Before BARNEY, C. J., SMITH, DALEY, and BILLINGS, JJ., and SHANGRAW; BILLINGS
• Citation: Cody v. Cody's Estate, 352 A.2d 684, 134 Vt. 113 (Vt. 1976)
• Decision Date: 03 February 1976
• Docket Number: No. 37-75,37-75
• Parties: Leona CODY v. ESTATE of Richard CODY et al.

Page 684

352 A.2d 684

134 Vt. 113

Leona CODY v. ESTATE of Richard CODY et al.

No. 37-75.

Supreme Court of Vermont.

Feb. 3, 1976.

Oreste V. Valsangiacomo, Jr., and Leighton C. Detora of Richard E. Davis Associates, Inc., Barre, for plaintiff.

Hiram S. Hunn, Plainfield, for defendants.

Before BARNEY, C. J., SMITH, DALEY, and BILLINGS, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

BILLINGS, Justice.

On December 7, 1973, Leona Cody, widow of Richard Cody, commenced an action alleging fraud against the estate of her late husband and against Robert Cody, Rayden Cody, Donald Cody, Conrad Cody, and Mary Bashara, children of Richard Cody by a former marriage, and against Frederick Bashara, husband of Mary Bashara, seeking damages for allegedly transferring certain assets from the estate of Richard Cody in defraud of her rights therein. The defendant estate moved to dismiss the complaint, and the other defendants moved for more definite statement. Both motions were granted on March 13, 1974. Plaintiff then answered the defendants' motion for more definite statement, to which the defendants, other than the estate, moved to strike and dismiss on the grounds that plaintiff had failed to comply with the order for a more definite statement within the time provided by the order and that her complaint failed to state a cause of action. On June 10, 1974, the motion was heard, but neither plaintiff nor her counsel appeared. On June 19, 1974, the Washington Superior Court granted defendants' motion to strike and dismiss. Plaintiff did not appeal from this order, nor did she seek relief from the judgment under the provisions of V.R.C.P. 60(b).

On August 15, 1974, plaintiff instituted an action against the same defendants, alleging the same cause of action and seeking the same relief. Defendants thereupon moved for summary judgment and dismissal upon the ground of res adjudicata. On November 8, 1974, the Washington Superior Court denied the motion, but by amended order dated February 5, 1975, dismissed the estate of Richard Cody and denied the motion for summary judgment on behalf of the remaining defendants. Pursuant to V.R.A.P. 5(b), this Court granted the remaining defendants permission to appeal.

V.R.C.P. 41(b)(3) provides that unless the court in its order specifies otherwise, a dismissal under V.R.C.P. 41(b)(2) based on a failure of a plaintiff to prosecute or to comply with the rules or any order of court, except in certain instances not here applicable, shall operate as an adjudication upon the merits. The June 19, 1974, order of the Washington Superior Court dismissed the plaintiff's first complaint and, lacking any specification otherwise, was, pursuant to the rule, a final adjudication...