Rule 59.New trials; amendment of judgments

Reporter’s Notes—2018 Amendment: Rule 59(c) is amended to extend its 10-day time period to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6. Rules 59(b), (d), and (e) are amended for consistency with the new federal standard for motion practice, which was extended from 10 days to 28 days. The 20-day time period in Rule 59(c) is reduced 14 days so that the total time for filing and serving affidavits may not exceed 30 days.

Reporter’s Notes—2006 Amendment: Rules 59(b), (c), (e), are amended for conformity with the Federal Rules and to establish internal consistency within the Vermont Rules of Civil and Appellate Procedure. See Reporter’s Notes to simultaneous amendments of V.R.C.P. 50(b) and (c).

Reporter’s Notes—1999 Amendment: Rule 59(a) is amended to allow a party to accept a remittitur or additur conditionally when an appeal on the excessiveness or inadequacy of the verdict is to be brought. In Brault v. Flynn, 166 Vt. 585, 690 A.2d 1365 (1996), the Court, following the United States Supreme Court’s interpretation of Federal Rule 59(a) and that of a majority of states, overturned a trial court decision that permitted a plaintiff to condition acceptance of remittitur on the outcome of an appeal. See Donovan v. Penn Shipping Co., 429 U.S. 648 (1977). In a concurrence, Justice Johnson, joined by Justice Morse, urged a change in the rule to permit such a conditional acceptance, citing the saving of judicial resources and the greater fairness to the plaintiff in a procedure that would allow a challenge of the remittitur without the time and expense of a new trial. Brault v. Flynn, 166 Vt. at 588-89, 690 A.2d at 1368-69. The present amendment accepts the invitation of the concurring opinion, and for the same reasons applies to additur as well.

Reporter’s Notes: This rule is substantially similar to Federal Rule 59, with some modifications based on the Maine Rule. The rule makes one major change in Vermont practice. Under 12 V.S.A. § 2354 (now superseded), the Supreme Court on petition could grant a new trial in an action determined in the county court after the term of court at which the county court judgment was rendered. See also former Supreme Court Rule 4. This provision did not apply in chancery. Dike v. Bristol School Dist., 119 Vt. 440, 128 A.2d 661 (1957). The rule, with Rule 60, requires all motions for new trial or like relief to be made initially in the trial court regardless of the time, with Supreme Court consideration only on appeal from the judgment. The primary purpose of the former Vermont statute was to permit parties to obtain relief on grounds which they did not bring, and could not have with diligence brought, to the attention of the trial court during the term or within 30 days after judgment. See Hodge & Mattheis v. Vermont Stone Corp., 113 Vt. 491, 37 A.2d 183 (1944); Stilphen v. Read, 64 Vt. 400, 23 A. 725 (1892); Chapman v. Chapman, 118 Vt. 166, 102 A.2d 849 (1954). Moreover, the statute was based on the assumption that the trial court’s power to grant a new trial expired with the end of the term. With the adoption of the rules, neither problem exists. Terms of court no longer impose any limitations upon the power of the county court to act. See Rule 6(c). Rules 59 and 60 permit the trial judge to give any relief that is now within the province of the Supreme Court. Further, the rules offer the advantage that proceeding at the trial court level is more economical than a petition to the Supreme Court. Under the rules, the parties need only go to the latter court if they are not satisfied with the trial judge’s disposition of the motion. Rules 59(a), (c), (d), and (f) provide for action by “the court before which an action has been tried,” rather than simply by “the court” as in the federal rule. Cf. Maine Rule 59. This language makes clear what is the practice under the federal rule that, except as provided in Rule 63, it is the trial court to which motions in the immediate post-trial period should be directed. See 3 Barron & Holtzoff, Federal Practice and Procedure § 1302 (Wright ed. 1958). This was the usual prior practice in Vermont, but the Court has held that, at least on remand, another court may hear the motion. See Russell v. Pilger, 113 Vt. 537, 558, 37 A.2d 403 (1944). Krupp v. State Highway Board, 125 Vt. 25, 209 A.2d 320 (1965). Cf. Rule 63. The provision of Rule 59(a) for partial new trial is in accord with present Vermont practice. See Sawyer v. Ewen, 122 Vt. 320, 173 A.2d 549 (1961). Rule 59(a) does not attempt to list the grounds for new trial but incorporates the grounds formerly available in Vermont on motion for new trial at law and for rehearing in chancery. See former Chancery Rule 37. Note that the requirement of a certificate of two counsel contained in former Chancery Rule 37.2 is not carried forward. Rule 59(a) contains a provision for remittitur and additur, which was recently added by amendment to the Maine rule and is not in the federal rule. Remittitur was an accepted feature of former Vermont practice. See Lancour v. Herald & Globe Assoc., 112 Vt. 471, 28 A.2d 396 (1942); Pettengill v. Kelton, 124 Vt. 472, 207 A.2d 245 (1965). In recent cases, the court has left open the propriety of additur. Pettengill v. Kelton, supra; Quesnel v. Raleigh, 128 Vt. 95, 258 A.2d 840 (1969). Although the United States Supreme Court in Dimick v. Scheidt, 293 U.S. 474 (1934), a 5-4 decision, held additur unconstitutional under the Seventh Amendment, that decision has been criticized and is not binding in the interpretation of Ch. 1, Article 12, and Ch. 2, Section 30, of the Vermont Constitution, which do not contain the admonition of the Seventh Amendment that “no fact tried by a jury shall be otherwise reexamined . . . than according to the rules of the common law.” See James, Civil Procedure 323-325 (1965). Rule 59(b) provides that a motion for new trial must be made within ten days after entry of judgment. This period is shorter than the 30 days “after the verdict or judgment is reached” allowed for a motion for new trial in the trial court under 12 V.S.A. § 2351 (now superseded). Cf. former Chancery Rule 37. Moreover, the period provided in the rule runs from the entry of judgment, rather than the date of the verdict. The shorter period is consistent with other post- judgment periods in the rules, however, and seems desirable in the interests of finality. In addition, the availability of relief under Rule 60(b) for a party who could not with due diligence have moved within the time set by Rule 59(b) eliminates any real disadvantage from the shorter limit. Note that this time period is one of those which the court may not extend under Rule 6(b). The time periods of Rule 59(c), regarding affidavits in opposition to a motion supported by affidavits, are consistent with Rule 59(b). Use of affidavits was previously recognized in Vermont. See former Supreme Court Rules, Pt. I, R. 4. Rule 59(d), providing for new trial on the court’s own motion or on a ground not stated in the party’s motion, is consistent with prior Vermont practice. See Fadden v. McKinney, 87 Vt. 316, 326, 89 A. 351 (1914). The ten-day time limit on the court’s action is not subject to enlargement under Rule 6(b). Rule 59(e) gives the court broad power to alter or amend a judgment on motion within ten days after entry thereof. In the federal courts, a motion under this subdivision has been held an appropriate means to obtain relief such as the change of a dismissal with prejudice to one without prejudice or the modification of provisions as to interest. See 3 Barron & Holtzoff § 1308. A Rule 60(b) motion made within the ten-day limit of Rule 59(e) should be treated as though made under the latter rule. See Foman v. Davis, 292 F.2d 85 (1st Cir. 1961), reversed on other grounds, 371 U.S. 178 (1962). The Vermont courts previously exercised the power at any time to amend, alter, or vacate judgments on grounds similar to those embraced in Rule 60. See Haven v. Ward Estate, 118 Vt. 499, 114 A.2d 413 (1955) error in the record; Haskins v. Haskins Estate, 113 Vt. 466, 35 A.2d 662 (1944) (fraud or mistake). While Rule 59(e) permits a broader range of grounds for correction during the ten-day period after entry of judgment, such discretion in the court seems warranted in the interests of justice. Moreover, the practice should not be burdensome in view of the shortness of the time limit, which cannot be extended under Rule 6(b). A timely motion for new trial under Rule 59 or for alteration or amendment of a judgment under Rule 59(e) terminates the running of the time for appeal. Upon grant or denial of a motion to alter or amend a judgment or denial of a motion for new trial, the full time for appeal begins to run again. See Appellate Rule 4. This provision appears to change Vermont practice, but in view of the short period in which such motions lie, the change should cause no difficulty. Note that under Rule 62(a) judgment is automatically stayed during such an extension of the time for appeal. See Reporter’s Notes to Rule 62. Under 12 V.S.A. § 2363 (now superseded), stay on petition for new trial was discretionary. Rule 59(f), authorizing grant of a new trial where death of the reporter or other eventuality makes a substantial portion of the transcript unavailable for purposes of appeal, is intended to put beyond doubt the power to grant a form of relief which, in any event, would probably be available in a proper case under Rule 60(b)(6). The subdivision, not found in the federal rule, is based on Maine Rule 59(f) but the provision covering unavailability resulting other than from death or disability of the reporter embodies prior Vermont practice. See Wemyss v. Viens, 125 Vt. 81, 211 A.2d 238 (1965) (lost notes); Reynolds v. Romano, 96 Vt. 222, 118 A.2d 810 (1922) (reporter had left state and refused to furnish transcript).