Burns 12 Weston Street NOV - Decision on Motion ( 2019 )


Menu:
  •                                          STATE OF VERMONT
    SUPERIOR COURT                                                           ENVIRONMENTAL DIVISION
    Docket No. 75-7-18 Vtec
    Burns 12 Weston Street NOV
    ENTRY REGARDING MOTION
    Title:           Motion to Strike/Dismiss Cross Motion Summary J (Motion 7)
    Filer:           Charles Burns
    Attorney:        Brian P. Hehir
    Filed Date:      August 1, 2019
    Response in Opposition filed on 08/16/2019 by Attorney Norman C. Williams
    for Appellee Sandra Wynne
    The motion is DENIED.
    Charles and Cynthia Burnes (“Burnses”) are appealing a decision of the City of Burlington
    Development Review Board (“DRB”) upholding a Notice of Violation (“NOV”) issued by the City
    of Burlington (“City”) on March 1, 2018. The NOV alleges an unpermitted duplex use at the
    Burnses’ property located at 12 Weston Street, Burlington, Vermont (“the Property”). A group
    of Neighbors filed a notice of appearance expressing support for the NOV and have been granted
    interested persons status (“Neighbors”).1 The Burnses claim the City is equitably estopped from
    pursuing a zoning enforcement action when the City made prior references to the Property as a
    duplex. In the alternative, the Burnses assert that 24 V.S.A. § 4454(a) inhibits the City from
    prosecuting them for their alleged zoning violation, since the statute prohibits enforcement when
    the unpermitted use has existed for more than fifteen years.
    Presently before the Court is the Burnses’ motion to strike the cross-motion for summary
    judgment, memorandum in support, statement of undisputed facts, and all attachments and
    exhibits filed by the Neighbors. The Burnses assert that the cross motion for summary judgment
    and associated filings do not comply with Court’s Scheduling Order and are therefore untimely.
    The Vermont Rules of Civil Procedure apply to appeals before the Environmental Division
    of the Vermont Superior Court. V.R.E.C.P. 5(2). Pursuant to V.R.E.C.P. 56(b) a party may file a
    1
    The Neighbors appearing in this appeal as Interested Persons are Michael and Caryn Long, Paul Bierman,
    Hamilton Davis, Kathleen Donna, Alex Friend, Greg Hancock, Kari Hancock, Susan Moakley, Matt Moore, Mary
    Moynihan, Candace Page, Scott Richards, Peg Boyle Single, Richard Single, and Sandra Wynne.
    In re Burns 12 Weston St. NOV, No. 75-7-18 Vtec (Entry Order on Motion to Strike) (Oct. 25, 2019)              Page 2 of 5.
    motion at any time prior to a deadline “set by stipulation or court order.”2 The adverse party
    may file a memorandum in opposition, statement of disputed fact, and affidavits up to 30 days
    after the service of the motion upon that party. Id. The Court has discretion, after giving notice
    and reasonable time to respond, to arrive at a judgment independent of the motion.3 V.R.C.P.
    56(f). While this language gives the Court latitude to enforce the function of summary judgment,
    which seeks to “avoid a useless trial,” the Court is limited by the strictures of scheduling orders.
    Sykas v. Kearns, 
    135 Vt. 610
    , 612 (1978); 6 J. Moore, Federal Practice P 56.15, at 56-391 (2d ed.
    1976) (noting the purpose of summary judgment); Carpenter v. Cent. Vermont Med. Ctr., 
    170 Vt. 565
    , 568–569 (1999) (holding a trial court judge did not abuse their discretion by enforcing the
    scheduling order).
    Pursuant to V.R.C.P. 16.2(v), a scheduling order controls the subsequent course of action
    and takes precedence over any rule with respect to the time for taking any action. The Court
    may modify the schedule “only on motion and a showing of good cause” and “where necessary
    to prevent injustice.” V.R.C.P. 16.29(v). The Reporter’s Notes indicate this language is necessary
    “because many of the rules authorizing pretrial motions allow them to be made “at any time
    after the . . . commencement of the action.” Reporters Notes V.R.C.P. 16.2. The Vermont
    Supreme Court has noted that “orders will not be modified ‘simply upon request’; rather good
    cause must be shown why a party cannot satisfy the order despite [the party’s] diligence.”
    Carpenter, 170 Vt. at 568 (1999) (quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay
    Kane, Federal Practice and Procedure § 1522.1, at 231 (2d ed.1990)). Thus, where a movant has
    made no showing that despite due diligence, they had good cause for filing late, the Court may
    exercise its discretion to enforce the scheduling order deadlines. Carpenter, 170 Vt. at 568
    (1999). While the Court recognizes the dogmatic nature of scheduling deadlines, they serve the
    important interests of judicial efficacy and accountability.4 Indeed, under V.R.C.P. 16.2, the Court
    is encouraged to employ “reasonable control over the pace of litigation without forcing the
    2
    Consistent with Vermont practice, this rule allows the use of stipulated scheduling orders to regulate
    timing of summary judgement motions. This language revised former V.R.C.P. 56(a) and (b), which “permit[ed] a
    defending party to file at any time, and limit[ed] a claimant to any time ‘after the expiration of 20 days from the
    commencement of the action.’” See Reporter’s Notes 2012 Amendment, V.R.C.P. 56.
    3
    In arriving at an independent judgement, the Court may “grant summary judgement for a nonmovant;
    grant the motion on grounds not raised by a party; or consider summary judgment on its own after identifying for
    the parties material facts that may not be genuinely in dispute.” V.R.C.P. 56(f).
    4
    The Vermont Supreme Court has recognized that “[t]here have been periods in our history when clogged
    dockets in our superior court meant that a litigant would wait for a trial date far longer than the same litigant would
    wait today.” Vermont Supreme Court Admin. Directive No. 17 v. Vermont Supreme Court, 
    154 Vt. 392
    , 402 (1990).
    Moreover, this interest in efficiency is supported by the United States Court of Appeals for the Second Circuit as they
    noted that the “ . . . fact remains that the calendars of the . . . [d]istrict court are clogged and justice is being delayed
    or perhaps impaired as a result. In order to reduce this choking congestion, the district courts must be permitted to
    exercise their discretion in appropriate ways that will ensure justice to all who seek it. We will not interfere with the
    conscientious judge who will not accept the status quo of calendar congestion.” Davis v. United Fruit Co., 
    402 F.2d 328
    , 331–32 (2d Cir.1968) (footnote omitted).
    In re Burns 12 Weston St. NOV, No. 75-7-18 Vtec (Entry Order on Motion to Strike) (Oct. 25, 2019)   Page 3 of 5.
    litigants to meet deadlines that will make preparation and full airing of the case impossible.”5
    Reporters Notes V.R.C.P. 16.2.
    The Vermont Supreme Court has historically recognized that trial judges are given “broad
    discretion to manage their dockets.” Pcolar v. Casella Waste Sys., Inc., 
    2012 VT 58
    , ¶ 20, 
    192 Vt. 343
    , 353 (2012) (holding that a trial judge had not abused their discretion in denying plaintiff’s
    motion as untimely as plaintiff had “been aware of the need to proceed on [a set date] . . . for a
    long time”). Moreover, the Supreme Court has noted that “[s]cheduling orders are authorized,
    and are routinely used, to move cases to trial at a rate tailored to the particular case.” Vermont
    Supreme Court Admin. Directive No. 17 v. Vermont Supreme Court, 
    154 Vt. 392
    , 402 (1990).
    Thus, the Court should exercise intelligent and flexible judgment over scheduling orders that
    consider the exigencies of each situation. Davis v. Duplantis, 
    448 F.2d 918
    , 921 (5th Cir.1971).
    The Burnses correctly indicate that the Neighbors’ cross-motion for summary judgment
    was filed after the July 1, 2019 amended summary judgement deadline set by the April 5, 2019
    Scheduling Order. As such, the Burnses move to strike the cross-motion for summary judgement
    and associated filings as untimely. The question before the Court is whether a cross-motion for
    summary judgement may be filed after the summary judgment deadline but in response to a
    motion for summary judgment as a responsive pleading. While we recognize the cross-motion
    as untimely filed, it is within this Court’s discretion to allow the cross-motion for summary
    judgement. For the reasons stated below, we choose to do so here.
    The cross-motion for summary judgement was untimely filed. The Scheduling Order filed
    by this Court on April 5, 2019 granted an extension of the deadline for the filing of pre-trial
    motions and instituted a new deadline of July 1, 2019. The Neighbors filed a cross-motion for
    summary judgement on July 30, 2019, 29 days after the Scheduling Order deadline. The filing
    was therefore untimely.
    The Neighbors did not provide any showing that despite due diligence they had good
    cause for filing their motion late and therefore do not meet the requirements of V.R.C.P. 16.2.
    The Neighbors neither addressed the failure to file in their opposition to the Burnses’ motion to
    strike nor did they take the opportunity to file a motion showing good cause and explain the
    failure to file despite due diligence.
    Furthermore, while the Court may modify a scheduling order “where necessary to
    prevent injustice,” the circumstances here do not rise to this level. V.R.C.P. 16.2(v). While the
    Neighbors argue that the purpose of summary judgment is “to avoid the time and expense of a[n
    unnecessary] trial,” this interest alone does not allow the Court to permit cross-motions for
    summary judgement “where appropriate without regard to motion practice.” Neighbors’
    Opposition to Burnses’ Motion to Strike Cross Motion for Summary Judgement at 1, filed Aug.
    16, 2019. Such an allowance would unduly encumber pretrial motion practice and incentivize
    untimely, unpredictable, and prejudicial filings.
    5
    The Court’s “management procedures should be applied impartially to all litigants, afford adequate
    attention to the merits of each case, and facilitate prompt determination of all cases.” V.R.C.P. 16.2.
    In re Burns 12 Weston St. NOV, No. 75-7-18 Vtec (Entry Order on Motion to Strike) (Oct. 25, 2019)             Page 4 of 5.
    Under ordinary circumstances, V.R.C.P. 16.2(v) requires good cause be shown. However, there
    still exists broad judicial discretion to manage dockets and scheduling orders. Vermont Supreme
    Court Admin. Directive No. 17, 
    154 Vt. at 402
    . This discretion is assessed on a case-by-case basis
    that considers the exigencies of each situation. 6 In this case, the Court will, for its own
    convenience and in its discretion, consider the Neighbors’ cross motion, because the legal issues
    presented are clear and resolution of the cross-motion will narrow the issues that the Court will
    have to consider at trial.7 Hahnel v. United States, 
    782 F. Supp. 2d 20
    , 31 (W.D.N.Y. 2011)(citing
    Grochowski v. Phoenix Const., 
    318 F.3d 80
    , 86 (2d Cir.2003). The Court further observes that
    Appellants will not be unduly prejudiced by this ruling.8 As a consequence, this Court will allow
    the cross-motion for summary judgment by the Neighbors. We explain below why this particular
    case warrants an exercise of discretion in allowing the cross-motion to be considered.
    Pursuant to V.R.C.P. 56(f), the Court may exercise its own judgment independent of a
    motion. Under this authority, this Court would normally have to give notice and a reasonable
    time of 10 days from the filing of this Order for the Burnses to respond. Here, the Neighbors’
    cross-motion for summary judgment and associated filings sufficiently present the opposing
    arguments in support of an opposite summary judgment ruling.
    For all these reasons, we DENY The pending motion to strike. Appellants are afforded an
    opportunity to file a memorandum in opposition to the summary judgment that neighbors seek
    by their cross-motion. The Burns shall have until Monday, November 11, 2019 to file any
    opposition memorandum.
    So Ordered.
    Electronically signed on October 25, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
    ________________________________
    Thomas S. Durkin, Superior Judge
    Environmental Division
    6
    In assessing this case, the Court considers the prejudicial effects of an untimely filing, interests in judicial
    efficiency, the purpose of summary judgement, the preceding history of the case, and the legal issues raised in the
    cross motion for summary judgement.
    7
    The nature and purpose of summary judgment, which seeks to avoid an unnecessary trial where there
    are no material facts in dispute, would serve the interests of judicial efficacy in resolving a dispute prior to trial.
    8
    This Court recognizes prejudice may occur when a party is permitted to file a cross-motion for summary
    judgment late where the opposing party purposefully employed a strategy to file a motion for summary judgement
    on the last date of a deadline with the intent to deprive the opposing party of the benefit of addressing the particular
    issues raised in a subsequent affirmative motion. However, a cross-motion for summary judgment allows for
    responsive pleading, which would aid in negating the prejudicial effect felt by the opposing party. Moreover, in this
    particular case, the parties involved, the property that is the subject of this dispute, and the basis of the legal
    questions presently on appeal are the subject of a prior dispute. See In re Burns Two-Unit Residential Building, 
    2016 VT 63
    , 
    202 Vt. 234
     (2016). Accordingly, the parties have a high degree of familiarity with the facts and legal issues
    involved.
    In re Burns 12 Weston St. NOV, No. 75-7-18 Vtec (Entry Order on Motion to Strike) (Oct. 25, 2019)   Page 5 of 5.
    Notifications:
    Brian P. Hehir (ERN 4252) Attorneys for Appellant Charles and Cynthia Burns.
    Norman C. Williams (ERN 2739) and Celeste E. Laramie (ERN 8852), Attorneys for Appellees
    Michael & Caryn Long, Paul Bierman, Hamilton Davis, Kathleen Donna, Alex Friend, Greg and Kari
    Hancock, Susan Moakley, Matt Moore, Mary Moynihan, Candace Page, Scott Richards, Peg Boyle
    and Richard Single, and Sandra Wynne.
    Kimberlee J. Sturtevant (ERN 4778), Attorney for Interested Person City of Burlington.
    svalcour
    

Document Info

Docket Number: 75-7-19 Vtec

Filed Date: 10/25/2019

Precedential Status: Precedential

Modified Date: 7/31/2024