Odonnell v. Clough

7ermont Superior Court
Filed 10/04/24
Orange Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orange Unit Case No. 21-CV-00261
5 Court Street
Chelsea VT 05038
802-685-4610
www.vermontjudiciary.org

Cris O'Donnell et al v. Hope Clough et al

ENTRY REGARDING MOTION
Title: Motion to Continue (Motion: 16)
Filer: Hope A. Clough; Michelle Clough
Filed Date: October 02, 2024

The motion is DENIED.

The Clough Defendants have filed their third motion seeking to either continue the present
bench trial scheduled for October 7, 2024 or to stay it indefinitely. Their present motion raises, for

the first time, the representation that Hope Clough has scheduled a doctor's appointment for herself

in New York City and cannot attend the trial.! The Parties to this case have had sufficient notice of

this trial date, and the Court has expressed in its prior Orders that it is the proper time for this

matter, which is now three years old to move forward.

As a preliminary matter, Defendants' motion does not comply with the standards for a
motion to continue under V.R.C.P. 40(d), which requires that "Motions for continuance shall be

accompanied by an affidavit, or a certificate of a party's attorney subject to the obligations of Rule
11, stating the reason therefor and the time when such reason was first known." V.R.C.P. 40(d)(1).
As noted in footnote 1, Defendants' motion lacked both the affidavit and critical information. Such
information is necessary for the Court to review and make a determination, particularly at this late
date as to the reasonableness and good cause basis for the request. See Thorburn v. Town of Norwich,

141 Vt. 242, 244 (1982) (affirming denial of continuance for failure to comply with the Rule).

Therefore, this motion is not properly before the Court and is denied on the grounds that it fails to

1
The motion provides no proof of this appointment or any information for the Court to consider apart from Hope
and Michelle Cloughs' representations that there is (1) an appointment (2) with a medical doctor (3) for an
undisclosed purpose (4) in New York City. It does not even provide the dates or location of this appointment.

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state the necessary basis for the Court to even review the issue under the parameters and standards
of Rule 40.

Setting this issue of compliance aside,2 the Court also finds several compelling reasons to
deny the motion. A motion to continue lies within the discretion of the trial judge. Kokoletsos v.
Frank Babcock & Son, 149 Vt. 33, 35 (1987).

In this case, there are multiple compelling reasons to bring this matter forward as scheduled
on October 7th.

First, there is the age of the case. As one of the older civil cases, the Court is obligated in
the interests of justice and in compliance with the expectations for timely adjudication to put this
case forward and move it toward resolution.

Second, Plaintiffs have retained counsel who has filed extensive exhibits and has likely
charged his clients for trial preparation. These costs would be lost or increased by a delay.

Third, there are several ancillary cases to this case, including a criminal prosecution and a
stalking matter that demonstrate that this is an active and on-going dispute and that resolution of the
boundary dispute in the present case is an important step to prevent further issues between the
parties.

Fourth, the Court’s time is limited. It has allocated the civil trial dates in this matter. If they
are cancelled at this late date, the Court will lose this time and will not be able to schedule other
matters or use this time to the benefit of the caseload, which would still require this case to be heard.
As the Vermont Supreme Court in Thorburn notes, “A reading of the full text of V.R.C.P. 40 reflects
the concern that courts must have for the orderly use of court facilities, provided at great expense to
the taxpayer for the use of litigants.” 141 Vt. at 244.

Fifth, Defendants have not explained the circumstances of the present motion, why it was
not raised in prior motions or why they waited until the last business day before trial to raise the
issue. They have also not given the Plaintiffs reasonable time to inquire or respond or for the Court

2 The Court engages in this additional analysis under Zorn v. Smith, 2011 VT 10, ¶ 22, which notes that while a self-

represented party is bound by the rules of civil procedure, the Courts should look to apply them with some
flexibility.

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to consider alternatives, which means that there is no time or ability to delve into the substance of
the request or consider it in a meaningful way beyond the surface of the motion.

The Court recognizes that this denial may create some limited hardship for Defendants to
have to re-schedule the doctor’s appointment, but at this late date and with the information available
to the Court, it finds no compelling basis to continue the bench trial in this long-standing matter.
Leiter v. Pfundston, 150 Vt. 593, 594 (1988) (affirming trial court’s denial of party’s third motion for
continuance based on health considerations where the motion was insufficiently briefed and other
factors warranted the denial).

ORDER

For the reasons stated above, Defendants’ Motion to Continue is DENIED.

Electronically signed on 10/4/2024 1:21 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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