Aerie Point Holdings LLC v. Vorsteveld Farm LLC

VERMONT SUPREME COURT Case No. 22-AP-279
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APRIL TERM, 2023

Aerie Point Holdings LLC v. Vorsteveld } APPEALED FROM:
Farm LLC* }
} Superior Court, Addison Unit,
} Civil Division
} CASE NO. 72-4-20 Ancv
Trial Judge: Mary Miles Teachout

In the above-entitled cause, the Clerk will enter:

Defendant appeals from the denial of its request to extend the appeal period and the
denial of its motion for reconsideration. It argues that the trial court’s August 2022 decision was
not a final appealable order and that its notice of appeal was timely. Alternatively, it contends
that the court should have extended the time for filing a notice of appeal. We affirm.

The court set forth the following timeline of events in response to defendant’s motion to
clarify. In March 2022, following a five-day trial, the trial court issued a decision on the merits
of plaintiff’s complaint. It found that plaintiff proved its claims of trespass against defendant
based on the disposal of wastewater from a tile drain system onto plaintiff’s land and nuisance
based on noxious smell. The court found plaintiff was entitled to injunctive relief and directed
plaintiff to file a proposed order.

Plaintiff filed a proposed order in April 2022, which was followed by defendant’s
opposition and plaintiff’s response. In mid-May 2022, the court issued an entry order resolving
the terms of the final injunction as to water and sediment. It required the parties to communicate
regarding the terms of the injunction concerning smell “so that a specific and narrowly tailored
injunction [could] be formulated.” The court indicated that, absent an agreement, it would hold a
status conference to discuss terms. It held a June 6, 2022, status conference and provided the
parties another opportunity to reach an agreement. The court stated that if the parties could not
agree, it would issue judgment. It reiterated this in writing.

On July 15, 2022, the parties still had not agreed to any terms and defendant submitted a
proposed injunctive order. Plaintiff objected and defendant responded. On July 25, 2022, the
court scheduled a “non-evidentiary hearing . . . on terms of injunctive relief re odor.” The parties
were directed to continue their discussions and be prepared to identify specific points of
disagreement. The hearing was held on the morning of August 15, 2022. The parties were given
a fourth opportunity during the hearing to reach an agreement. When that failed, the court asked
the parties if they wanted “any more time to try to come up with something between you” or if
the court should “just go ahead and do something based on the evidence” and the information
provided at the hearing. Plaintiff’s attorney responded that it made “sense to put something in
place so that we can move this along.” Plaintiff’s counsel then requested information from
defendant about an ammonia testing procedure, which defendant’s attorney agreed to provide. In
response to the court’s question about issuing a judgment, defendant’s counsel responded, “I
think at this point, the court has enough information,” and that further discussions would not be
productive. The parties discussed the provision of the ammonia test information and agreed that
defendant would provide it to plaintiff by September 1, 2022. The court then told the parties that
it would “go ahead and craft a final order based on what [it had] heard.”

Following the hearing, the court issued a scheduling/entry order. In the “order” portion
of the entry order, it stated that defendant’s attorney “shall provide to [p]laintiff’s counsel
specific information about the ammonia test that Def’s expert intends to conduct during a noticed
smell event no later than September 11, 2022.” In the “Next Steps” part of the order, the court
wrote “Court will determine terms and issue final order.”

Later that day, the court issued a document entitled “Judgment.” The document stated:
“[p]ursuant to the Decision filed March 28, 2022, and after consideration of the requests and
suggestions for specific terms of injunctive relief offered by the parties, the court hereby issues a
final judgment in the case consisting of the injunctive relief set forth below.” It enjoined
defendant from allowing water and sediment onto plaintiff’s land and prohibited it “from
permitting gases with a noxious odor as described in the above referenced Decision to travel
from any of its manure pits downgradient and settle and remain on Plaintiff’s land for more than
an hour.” The order further provided that: “For a period of three years from this date, either
party may file a post-judgment motion seeking to modify the terms of this injunction to include
terms that are more specific and narrowly tailored, subject to” certain prerequisites set forth in
the judgment order. The judgment was entered on August 15, 2022, and notice of the judgment
and a copy of the scheduling/entry order were sent to the parties on August 19, 2022.

On September 21, 2022, defendant filed a motion to clarify and a request for an extension
of time in which to file a notice of appeal. The court denied both requests. Referring to the
timeline above, the court found that its August 15, 2022, decision was a final judgment. The
decision finally disposed of the subject matter of the case, it was the court’s last action disposing
of all the issues, and it was described in the document itself as a “final judgment.” The court
explained that the parties had agreed at the hearing regarding the provision of the ammonia test
information and, in its scheduling/entry order, the court simply set a date for that to occur. It
found nothing in the record to support the argument that the court intended the discussions
between the parties to continue after August 15, 2022. No termination date was established for
ongoing communication, as had previously occurred. The attorneys had each declined the
opportunity for further discussion. Given the parties’ position at the hearing, the court stated its
intention on the morning of August 15 to craft a final injunctive order based on available
evidence and information. It did so in the afternoon as shown on the document itself, which was
labeled a “judgment” and which provided in the second line of the document that it was a “final
judgment.”

The court also denied defendant’s motion to extend the time in which to file an appeal,
finding that defendant failed to establish excusable neglect or good cause. It found that
defendant had clear notice that a final judgment had issued and that the timing of filing a notice
of appeal was entirely within defendant’s control. The court reiterated that defendant’s counsel

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was present at the August 15 hearing, she was familiar with the record as laid out in the decision
on the motion to clarify, and she was able to read the clear language included in the court’s
judgment order. Even if defendant’s counsel mistakenly believed that there would be further
discussion with plaintiff’s counsel about a possible agreement on specific terms of the odor
injunction, once she received the judgment and saw the language in the order to the contrary,
counsel had the ability to clarify the situation before the appeal period expired. The court thus
found no excusable neglect. The court similarly found that defendant could not establish good
cause because it required that there be “no fault on the movant’s part,” such as, for example, the
“failure of the Postal Service to deliver the notice of appeal.” Reporter’s Notes—2006
Amendment, V.R.A.P. 4. The court found defendant in control of and at fault for the failure to
make a timely filing.

Defendant moved for reconsideration, which the court denied. It found no basis to alter
its earlier ruling. It also rejected defendant’s argument that, under Vermont Rule of Civil
Procedure 6(e), three days should be added to the appeal deadline to account for mailing. It
explained that former Rule 6(e) applied when service was made by parties under Civil Rule 5,
and it did not support adding three days when the court sent notice of a judgment by electronic
means. The court reiterated that its August decision was a final disposition of the subject matter
of the case. It noted that the terms of the injunction related to smell provided for the possibility
of a post-judgment motion under narrowly defined conditions that might never occur. It found
that the inclusion of this possibility was within the framework of the equitable remedy of the
injunctive relief provided and it did not reflect any unfinished disposition of issues in the case. It
emphasized that the court’s work on the case was concluded as of its August 2022 judgment.
Defendant now appeals.

Defendant essentially repeats the same arguments on appeal. It contends that the court
erred in characterizing the August 2022 judgment as a final order. Defendant argues that it could
not discern whether the scheduling/entry order or judgment took precedence and that it
reasonably concluded that additional steps would be taken given the terms of the entry order. It
maintains that the judgment order did not end the litigation on the merits because the issue of
ammonia testing remained outstanding. Defendant also argues that the judgment was not final
because it provided that either party could file a post-judgment motion seeking to modify the
injunction.

The trial court did not err in concluding that its August 15, 2022, decision was a final
appealable judgment.

The test of whether a decree or judgment is final is whether it
makes a final disposition of the subject matter before the [c]ourt.
We require that the decree or judgment disposed of all matters that
should or could properly be settled at the time and in the
proceeding then before the court.

State v. CNA Ins. Cos., 172 Vt. 318, 322 (2001) (quotations omitted). That standard is satisfied
here.

As set forth above, the parties long negotiated over the terms of the injunction related to
odor. Both parties were aware at the August 2022 hearing that the court would be issuing a final
judgment and they asked the court to do so. The date by which defendant would provide the
ammonia testing process to plaintiff was agreed upon at the hearing. It did not represent an
unresolved issue in the case and its provision to plaintiff did not undermine the finality of the
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court’s judgment. Indeed, the terms of the scheduling/entry order required no further court
involvement. The judgment order resolved the issues in the case and it was evident from the
terms of the document—including its title and the statement that it was a final judgment—that it
was the final decision in the case. The court’s acknowledgement that the parties could file post-
judgment motions does not show that there remained outstanding issues for the court to decide.
As the trial court explained, moreover, to the extent that counsel was confused by receiving a
judgment order, along with a scheduling/entry order that reflected what the parties had agreed to
at the hearing, counsel could have sought clarification before the appeal period expired. The
existence of the scheduling/entry order does not undermine the final nature of the judgment order
issued by the court.

Defendant next asserts that it filed a timely motion to clarify and to appeal. It states that
it attempted to file a notice of appeal on September 20 and the filing was rejected. Defendant
suggests that the trial court found that its notice of appeal needed to be filed by September 20
and that we must adopt this date as well.

We reject this argument. The Vermont Rules of Appellate Procedure govern the deadline
for filing a notice of appeal. By rule, the notice of appeal needed to “be filed with the superior
court clerk within [thirty] days after entry of the judgment or order appealed from.” V.R.A.P.
4(a)(1). The judgment was entered on August 15, 2022. Although it was mailed several days
later, the entry date is the controlling date for purposes of filing a notice of appeal. Thus, the
notice of appeal needed to be filed (not mailed) by September 14, 2022. No attempt to file a
notice of appeal was made until September 20, 2022, outside the thirty-day appeal period. See
Casella Constr., Inc. v. Dep’t of Taxes, 2005 VT 18, ¶ 3, 178 Vt. 61 (recognizing that “timely
filing of a notice of appeal is a jurisdictional requirement”). The trial court did not identify a
different filing deadline, nor would we be bound by its decision if it had done so. It merely
observed that, even if the appeal period began when the decision was sent to the parties (rather
than entered), the notice of appeal was still not timely filed. The court expressly stated that it
took no position on the precise date that the appeal period expired because it was unnecessary to
do so. As the court explained, moreover, the three-day mailing rule formerly provided in Civil
Rule 6(e) does not apply here. Even if it did, it would not help defendant. Defendant’s notice of
appeal would still be untimely.

Finally, defendant argues that the court erred in denying the request to extend the appeal
deadline. It maintains that it demonstrated excusable neglect and good cause because it was
reasonably confused after receiving the judgment and scheduling/entry order on August 15,
2022.

We review the court’s decision for abuse of discretion, Solomon v. Design Dev., Inc.,
139 Vt. 251, 252-53 (1981), and we find none. As set forth above, the court found the record
clear as to the finality of the judgment order it issued. To the extent that defendant was
confused, defendant could have sought clarification within the appeal period. While defendant
contends that it was without fault, the trial court concluded otherwise. It considered the factors
relevant to excusable neglect, see In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60,
finding several of the factors not particularly significant in this case. It did not find that these
factors favored defendant, as defendant asserts. The court focused on the third factor—the
reason for delay—and concluded that there were no outside circumstances to blame for the late
filing. See id. (explaining that, “[d]espite the flexibility of the standard and the existence of a
four-factor test, the appropriate focus is on the third factor: the reason for delay, including
whether it was within the reasonable control of the movant”). The court provided reasoned

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grounds for its decision as to good cause as well. The fact that defendant disagrees with the
court’s conclusion does not establish an abuse of discretion. See, e.g., Meyncke v. Meyncke,
2009 VT 84, ¶ 15, 186 Vt. 571 (mem.) (explaining that arguments which amount to nothing
more than disagreement with court’s reasoning and conclusion do not make out case for abuse of
discretion). We find no error in the court’s denial of defendant’s request.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

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