Fyles v. Schmidt, 2
| Decision Date | 12 July 1982 |
| Docket Number | No. 2,No. 135-81,2,135-81 |
| Citation | 449 A.2d 962,141 Vt. 419 |
| Court | Vermont Supreme Court |
| Parties | Francis S. FYLES and Olga M. Fyles v. Charles SCHMIDT and Fire District |
Cleveland, Unsworth, Bennett & Bailey, Shelburne, for plaintiffs-appellants.
Matthew I. Katz of Latham, Eastman, Schweyer & Tetzlaff, Burlington, for defendants-appellees.
Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
The plaintiffs-appellants filed a complaint in the nature of a mandamus pursuant to V.R.C.P. 75 against the chairman of the Prudential Committee of Fire District No. 2, Shelburne, Vermont, requesting that the court order the defendants to assume the ownership and maintenance of a lateral sewer line from plaintiffs' residence to the defendants' sewer main. The trial court after a hearing denied the relief requested. Plaintiffs appeal.
In 1950 Fire District No. 2 was chartered and subsequently a sewer main was installed along the east side of U.S. Route 7. It extended as far as, what was then, the last house within district boundaries. In 1961 plaintiffs built a house on property on the west side of U.S. Route 7 some distance beyond the end of the sewer main. After determining that their land was unsuitable for a septic or leaching system, the plaintiffs installed at their expense a sewer line connecting their house to the termination of the defendants' sewer main. This line extended some 50 feet across U.S. Route 7 and 480 feet along the west side of the highway. Because of the slope of the land a pumping station was also installed.
In 1969 and later in 1977 plaintiffs requested that the district take over the maintenance and ownership of the line and pump. By letter dated July 29, 1977, the district refused. Subsequently on February 7, 1978, plaintiffs requested the district to reverse its prior decision. This was denied. Again on April 21, 1978, plaintiffs' attorney asked for "a recent refusal to act," which request was complied with on April 27, 1978. Then, on May 2, 1978, pursuant to V.R.C.P. 75(c), plaintiffs instituted the present action. The defendants objected to the timeliness of the complaint both as an affirmative defense below and again on appeal. The trial court found that the complaint was timely but held for the defendants on the merits, refusing to order the fire district to take responsibility for the sewer line. Plaintiffs raise three issues on appeal.
As a preliminary matter we must decide whether plaintiffs' suit was timely filed in the trial court. We hold that it was not, but that defendants are estopped from objecting on this ground. V.R.C.P. 75(c) provides that appeals from the decision of a subdivision of the state shall be made within thirty days unless the court enlarges the time pursuant to V.R.C.P. 6(b). V.R.C.P. 6(b) provides that the court, for cause shown, may enlarge the time for filing only if (1) the request for enlargement was made prior to the expiration of the original time period, or (2) the failure to act was a result of excusable neglect.
In the present case the plaintiffs did not request an enlargement, nor did they show excusable neglect. They assert instead that the present action was timely. Yet the only purported action by the district within thirty days prior to May 2, 1978, the day this suit was brought, was an exchange of letters between the parties' attorneys. On April 21 plaintiffs' attorney, apparently realizing that he had not filed suit within the time limits of Rule 75, wrote to the defendants' attorney explaining that he was planning to bring suit but to do so needed a "recent refusal to act." Incredibly, defendants' attorney complied. We hold that this pro forma exchange of letters does not constitute a reviewable governmental action for purposes of Rule 75.
This defect, however, is not fatal to the plaintiffs' case. The thirty-day filing requirement of Rule 75 is not jurisdictional, V.R.C.P. 75 Reporter's Notes, and the original July 29, 1977, letter of the defendants' refusing to assume responsibility for the sewer line was a reviewable governmental action under Rule 75. Although a suit was not brought within thirty days of this refusal, the defendants are estopped from objecting on this ground, because of their letter of April 27, 1978. See Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, 303 A.2d 811, 815 (1973).
We turn now to the three issues raised by the plaintiffs on appeal. The plaintiffs claim that: (1) the...
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Alger v. Department of Labor & Industry
...in which action should reasonably have occurred." V.R.C.P. 75(c). This time limit, however, is not jurisdictional, Fyles v. Schmidt, 141 Vt. 419, 422, 449 A.2d 962, 964 (1982), and the Department raises it for the first time on appeal. The only time bar raised below was with respect to plai......
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...See id. Under the "usual principles of law," id., issues not challenged on appeal are deemed waived. See Fyles v. Schmidt, 141 Vt. 419, 422-23, 449 A.2d 962, 965 (1982) (issues not fairly presented to trial court are not preserved on appeal); Bigelow v. Department of Taxes, 163 Vt. 33, 38, ......