Morrisseau v. Estate of Fayette, 87-493
| Decision Date | 24 August 1990 |
| Docket Number | No. 87-493,87-493 |
| Citation | 155 Vt. 371,584 A.2d 1119 |
| Parties | Dennis MORRISSEAU v. ESTATE OF Frederick FAYETTE. |
| Court | Vermont Supreme Court |
Samuelson, Portnow & Little, P.C., Burlington, for plaintiff-appellant.
Paul, Frank & Collins, Inc., Burlington, for defendants-appellees.
Before PECK, DOOLEY and MORSE, JJ., BARNEY, C.J. (Ret.), and SPRINGER, District Judge (Ret.), Specially Assigned.
Plaintiff brought this action for declaratory judgment and specific performance of a contract to purchase Juniper Island in Lake Champlain, a property held by a group of eleven heirs as tenants in common. The trial court dismissed his complaint on two grounds. The first is procedural: plaintiff failed to comply with the time limits of V.R.C.P. 3 in serving process on several named defendants in the lawsuit, and never requested an enlargement of time under V.R.C.P. 6(b). The second derives from the liquidated damages provision of the contract, which limits the buyer's remedy upon the seller's breach to a return of his deposit. Plaintiff appeals. We affirm on the procedural ground and do not reach the remedies question.
Plaintiff concedes that he failed to comply with V.R.C.P. 3, but contends that no prejudice to any defendants was occasioned by the delay. Rule 3, however, does not require a showing of prejudice before dismissal. It says: "If service is not timely made ..., the action may be dismissed on motion...." See Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 660 (D.Md.1986) (under similar Fed.R.Civ.P. 4(j)), "the absence of prejudice is not of aid to a faulty plaintiff who presents no justifiable reason for his lack of diligent and timely conformance" with the rule). Here, it is undisputed that the complaint was not served to certain defendants within the thirty days then required by the rule; the trial court on August 20, 1987, noted that certain defendants had not yet been served, although the action commenced some two years earlier, on September 9, 1985. It is also undisputed that plaintiff did not request an extension of time under V.R.C.P. 6(b). The trial court thus concluded:
Reading Rules 3 and 6(b) together, as well as taking into account the Reporter's Notes which specify that Rule 3 requires service within 30 days and places the burden on the plaintiff who legitimately needs more time to seek enlargement, the Court concludes that plaintiff has not fulfilled Rule 3's requirements. Indeed, the Court specially notes the long time periods which have elapsed in the case. Theresa Wall has not yet been served. Diane Fayette was served 477 days after the complaint was filed; Linda Fayette was served 390 days after the complaint was filed; Peter Fayette was...
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Morrisseau v. Fayette
... ... Dennis Morrisseau appeals the Chittenden County Superior Court's grant of summary judgment to defendants, Philip Fayette and the heirs to the estate of Frederick J. Fayette, in an action for specific performance of a purchase agreement for the sale of Juniper Island, an island in Lake Champlain ... ...
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Fercenia v. Guiduli
...merely failed to comply with the rules. Prejudice or lack thereof to defendants is inconsequential. See Morrisseau v. Estate of Fayette, 155 Vt. 371, 372, 584 A.2d 1119, 1119 (1990) (holding that V.R.C.P. 3 does not require a showing of prejudice before dismissal of action after plaintiff f......
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Brooks v. K.S.T., Inc.
...at 5. Although Defendants cite Fercenia v. Guiduli, 2003 VT 50, ¶ 12, 175 Vt. 541, 545, 830 A.2d 55, 58-59, and Morrisseau v. Estate of Fayette, 584 A.2d 1119, 1119 (Vt. 1990), for the proposition that notice of the claims is "of nomoment[,]" (Doc. 15 at 5), that approach is arguably incons......
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Bessette v. Department of Corrections
...6(b) together," consistent with this note, for purposes of determining timely service under the rules. Morrisseau v. Estate of Fayette, 155 Vt. 371, 372, 584 A.2d 1119, 1119-20 (1990). In Morrisseau, we affirmed the dismissal of plaintiff's suit because it was "undisputed that the complaint......