Rule 77.Superior courts and clerks

Reporter’s Notes—2020 Amendment: Rule 77(c) is amended to clarify that its cross references are to the 2010 or 2020 Vermont Rules for Electronic Filing, if either is applicable.

Reporter’s Notes—2017 Emergency Amendment: Rule 77(e) of the Vermont Rules of Civil Procedure was promulgated in 1984 to align the Rules of Civil Procedure with the existing confidentiality provision set forth in 4 V.S.A. § 652(4), enacted in 1972. With the legislative repeal of 4 V.S.A. § 652(4) in 2013, the residual confidentiality provision of Rule 77(e), which precluded disclosure of records pertaining to the filing of an action until the action was disposed or at least one defendant was served, is superfluous, and is therefore removed.

Reporter’s Notes—2012 Amendment: Rule 77(d)(2) as previously amended is returned to its prior form to facilitate the development of a statewide practice of requiring court notices to be sent electronically pursuant to directives issued by the Court Administrator for specific units or divisions of the superior court as they develop the capability for electronic delivery. See simultaneous addition of Administrative Orders Nos. 44 and 45, amendments of Administrative Order No. 41 and V.R.E.F. 3(b) and (c), and Reporter’s Notes to those additions or amendments. Rule 77(d)(2) will apply to the Family and Environmental Divisions by virtue of its incorporation in V.R.F.P. 2(a), 4(a), and V.R.E.C.P. 4(a), 5(a). It is now identical to V.R.Cr.P. 56(d), which is incorporated in V.R.F.P. 1(a), and to V.R.P.P. 77(d).

Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.

Reporter’s Notes—2010 Amendment: Rules 4(b), (l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.

Reporter’s Notes—2009 Emergency Amendment: V.R.C.P. 77(d) is amended to provide that notice of entry of an order or judgment, and any other notice that the rules require the clerk to give, is to be given by a method that the Supreme Court will provide by administrative order or directive. In language taken from V.R.Cr.P. 56(d), paragraph (2) provides that notice pursuant to that order or directive will be sufficient under the rules. The amended rule will apply to Family and Environmental Court proceedings by virtue of its incorporation in the Vermont Rules for Family Proceedings and the Vermont Rules for Environmental Court Proceedings. Similar amendments are being made simultaneously to V.R.Cr.P. 56(d), V.R.P.P. 77(d), and V.R.A.P. 45(c). These are emergency amendments to allow the Supreme Court to take appropriate steps to reduce the costs of service in the face of economic exigencies.

Reporter’s Notes—2001 Amendment: Rule 77(e) is amended to provide that the clerk may disclose the filing of an action or release records pertaining to it if either of two situations is present: (1) the action has been finally disposed of; or (2) at least one defendant has actual notice of the pendency of the action, by service or otherwise, and the time for service has expired with respect to all defendants without actual notice. Note that if the time for service is extended, the extended time must have expired with respect to defendants in the second situation. The purpose of the amendment is to clarify questions that have arisen in the implementation of the rule. For closed cases, it will no longer be necessary to determine whether defendants had actual notice to gain access. For open cases, it clarifies that the clerk need not have a return of service to provide access; the clerk’s knowledge that a defendant has actual notice of the action suffices. It also clarifies that if the clerk cannot determine that some defendants have actual notice, access should still be provided if the time for service under Rule 3, and any extension under Rule 6(b), has expired with respect to all defendants for whom actual notice cannot be determined. The rule is consistent with the parallel provision of 4 V.S.A. § 652(4), and clarifies its application to pending and closed cases.

Reporter’s Notes—1996 Amendment: Rule 77(d) is amended concurrently with the amendment of V.R.A.P. 4 to incorporate changes made in the 1991 amendments of Federal Rule 77(d) and F.R.A.P. 4(a). The provision of Rule 77(d) that mailing of the notice of entry of judgment is sufficient notice under the rules is deleted, because amended V.R.A.P. 4 permits a party who did not receive notice of entry of judgment to seek relief in certain circumstances. See Reporter’s Notes to simultaneous amendment of V.R.A.P. 4. As the Advisory Committee’s Note to the 1991 Amendment of Federal Rule 77(d) states, “The revised rule lightens the responsibility but not the workload of the clerk’s offices, for the duty of that office to give notice of entry of judgment must be maintained.”

Reporter’s Notes—1984 Amendment: Subdivision (e) is added to provide that certain papers, filed in the clerk’s office, are confidential until served, and that the clerk shall not disclose materials or information required by law to be kept confidential. The rule follows the wording of 4 V.S.A. § 652(4). There are two reasons for adding the statutory confidentiality language to the rules. First, decisions in other states suggest that control over records is entirely within the province of the judicial branch so that statutory regulation is ineffective. See, e.g., Johnson v. State, 336 So. 2d 93 (Fla. 1976); Johnson v. Gehbauer, 159 Ind. 271, 64 N.E. 855 (1902). Second, the statute applies only to Superior Court. By virtue of the incorporation of this rule into D.C.C.R. 77, the rule will also apply in District Court. The subdivision is not intended to prevent a defendant who has been served from gaining access to the case file until all other defendants are served. When service is complete on a defendant, the restrictions against disclosure no longer apply to that defendant.

Reporter’s Notes—1972 Amendment: This amendment reflects the amendment to Rule 55(b)(2) under which judgments by default are grantable only upon application to the court and by order of the Presiding Judge.

Reporter’s Notes: This rule is substantially similar to Federal Rule 77. Rule 77(a) recognizes that theoretically the court is always open for the filing of papers and similar purposes. Cf. Appellate Rule 45(a). If the clerk’s office is in fact closed, the clerk or a judge may be sought out to file a paper or obtain the desired action. Federal cases have held filing proper when a complaint was delivered to a deputy clerk of the court at her residence in the evening or a paper was slipped under the door of the clerk’s office after the office was closed. Greeson v. Sherman, 265 F. Supp. 340 (W.D. Va. 1967); Freeman v. Andrea, 11 F.R.Serv. 2d 5e.1, Case 2 (E.D. Pa. 1968). The careful lawyer will resort to such expedients only in a case of the most urgent necessity. Rule 77(c) is consistent with other provisions of the rules as to the powers of the clerk to perform certain acts as of course. See, e.g., Rules 4.1(b)(2) (attachment of personalty); 55(a), (b)(1) (entry of defaults and default judgments); 58 (entry of judgment); 68 (offer of judgment). The rule, however, asserts the court’s inherent power to control the action of the clerk. Rule 77(d) is similar in effect to former County Court Rule 5.4 (applicable in chancery by virtue of former Chancery Rule 56).