Cooper v. Savage, 83-327
| Decision Date | 09 November 1984 |
| Docket Number | No. 83-327,83-327 |
| Citation | 145 Vt. 223,485 A.2d 1258 |
| Parties | Peter I. COOPER v. Douglas E. SAVAGE. |
| Court | Vermont Supreme Court |
Robert P. Gerety, Jr., of Plante, Richards, Terino & Hanley, P.C., White River Junction, for plaintiff-appellee.
Douglas E. Savage, defendant-appellant, pro se.
Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and BARNEY, C.J., (Ret.), Specially Assigned.
Defendant, Douglas E. Savage, in his pro se appeal, challenges the damages portion of the judgment of $1,583 entered for the plaintiff, Peter I. Cooper, in a negligence action. This action was brought by the plaintiff to recover property damages to his automobile resulting from an intersection collision on April 2, 1979, with a dump truck driven by the defendant. After a bench trial, the court found that the accident was caused solely by the negligence of the defendant and, pursuant to a stipulation placed upon the record, awarded judgment for the plaintiff and dismissed the counterclaim of the defendant. We affirm.
On appeal the defendant contends that the judgment should be reversed and a new trial ordered pursuant to V.R.C.P. 60(b). Defendant claims that the court mistakenly interpreted his attorney's remarks as agreeing to the amount of plaintiff's damages, without further proof on the part of the plaintiff that all of those damages were proximately caused by the accident. Therefore, he alleges the court unwittingly relieved the plaintiff from his burden of proving damages by accepting the stipulation, without more. Defendant did not appeal the court's dismissal of his counterclaim.
The court, at the close of the evidence, made oral findings on the record in which it found:
The transcript of the colloquy at the time the stipulation was proffered to the court is essential for an understanding of defendant's claims of error.
Gerety (attorney for plaintiff): Your Honor I think we can put a stipulation on the record. If it's not correct--It's my understanding that we have a stipulation that a qualified expert inspected the vehicle following the accident and that the reasonable value in his opinion of the cost of repair on April 12, 1979, of the damages which he saw when he inspected the vehicle were ... $1,583.00.
The Court: Very well. That takes care of the damages aspect of the case, I believe.
Wright (attorney for defendant): The only thing that we want to make clear for the record, your Honor, is that we're willing to stipulate to the reasonableness of the costs to fix the damage that he observed or that he would say that he observed when he looked at it on April 12. This is some ten days after the accident. This is the only thing that I'd like to make clear, that he observed it some ten days after the accident. He was not at the accident. He does not know anyways that this damage was actually caused in the accident.
The Court: Okay. Basically if your expert testified, he would testify without impeachment or rebuttal that the cost of repair as of April 12, 1979, in his opinion was $1,583. However, he would also testify that he saw it twelve days after the accident.
Wright: Correct.
The Court: Very well. So stipulated. The court accepts that stipulation. And based on that, it would appear that your only issues remaining for adjudication are liability.
Wright: Correct.
Gerety: That's correct, your Honor. And I have nothing further. I rest at this time.
Defendant's attorney made no objection then, or at any time thereafter, to the court's expressed understanding of the stipulation and its acceptance of it as proof, without more, of plaintiff's damages.
Once a party agrees to a stipulation, he is bound by it, and the course of the trial is determined by it. Eurich v. Coffee-Rich, Inc., 130 Vt. 537, 542, 298 A.2d 846, 849 (1972) (); see also Hall v. Fletcher, 100 Vt. 210, 212, 136 A. 388, 389 (1927) ().
A timely objection by the defendant was necessary if he did not agree to the damages as stipulated, or to the court's express understanding of the stipulation. Defendant's failure to so object constitutes acceptance. Angolano v. City of South Burlington, 142 Vt. 131, 136, 453 A.2d 402, 404 (1982).
Assuming arguendo that the court misinterpreted the thrust of the stipulation, as defendant suggests, and erroneously inferred that the only issue remaining was whether the defendant's negligence was the responsible...
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..."Once a party agrees to a stipulation, he is bound by it, and the course of the trial is determined by it." Cooper v. Savage, 145 Vt. 223, 225, 485 A.2d 1258, 1260 (1984) (holding that defendant was bound by his own attorney's in-court stipulation to amount of damages where he failed to tim......
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...Rule 60(b) relief is ordinarily unavailable to relieve one from the effects of a stipulation freely made. See Cooper v. Savage, 145 Vt. 223, 225-26, 485 A.2d 1258, 1260 (1984). The above decisions would strongly suggest an affirmance in this case. There are, however, contrary threads throug......
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