 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Altman v. Altman3/5/1999
ENTRY ORDER
Plaintiff Robert Altman appeals from a superior court order denying his V.R.C.P. 60(b) motion to set aside an earlier judgment dismissing his complaint against defendants Jonathan Altman, Carol S. Berry, and Putney Pasta Company. Plaintiff contends the court erred in: (1) failing to hold an evidentiary hearing; and (2) denying the motion. We affirm.
The material facts are largely undisputed. Plaintiff, a resident of New York City, is the father of defendant Jonathan Altman. Jonathan Altman is married to defendant Carol S. Berry, and both are officers of defendant Putney Pasta Company. In June 1994, plaintiff filed a complaint against defendants, seeking a declaration as to the ownership of stock in the defendant corporation, an accounting of monies loaned to the corporation, and repayment of loans to defendant Jonathan Altman. Defendants filed an answer denying liability and a counterclaim alleging that plaintiff had breached certain fiduciary duties that he owed as trustee of a testamentary trust allegedly established by plaintiff's deceased spouse. Plaintiff filed an answer denying the counterclaim, and subsequently moved to dismiss it on the ground that it was not brought against an opposing party, but rather against plaintiff in his capacity as executor and trustee. The court initially granted the motion, but subsequently reconsidered its ruling and reinstated the counterclaim.
In June 1995, plaintiff's counsel moved to withdraw. Counsel's motion stated that plaintiff had agreed to the withdrawal and intended to enter his appearance pro se. In July, plaintiff filed a notice with the court stating that, effective immediately, he had chosen to represent himself. Plaintiff listed his address on the notice as 900 Park Avenue, New York City, New York. Later that month, defendants' attorney sent plaintiff a letter at the stated address containing a proposed discovery schedule.
When he did not receive a response, counsel sent plaintiff another letter in August concerning the proposed schedule. Failing again to receive a response, defendants' counsel requested the court to schedule a discovery conference. The court sent plaintiff a notice on October 6 directing him to appear at a status conference on October 18. Plaintiff failed to appear at the scheduled conference. Defendants' attorney thereupon moved to dismiss plaintiff's action for failure to prosecute under V.R.C.P. 41(b)(2). The court granted the motion and, on October 31, issued an order dismissing plaintiff's action with prejudice. Notice of the dismissal was mailed to plaintiff the next day.
On November 29, 1995, plaintiff faxed a request to the superior court clerk to reinstate the action. Plaintiff stated in the request that he had attempted to settle the matter "before the 30 days that you told me I had," that his attempt had been unsuccessful, and that he was requesting a reinstatement "to play it safe." In his request, plaintiff made no mention of the October 18 hearing. Around the same time, plaintiff consulted an attorney to consider his options. In March 1996, the court, treating plaintiff's fax as a filed motion to reopen, denied the same. In July, some four months later, plaintiff, having now retained an attorney, moved to strike the October 18 dismissal order pursuant to V.R.C.P. 60(b)(1), which authorizes relief from a final judgment or order because of "mistake, inadvertence, surprise, or excusable neglect" if made within a reasonable time. Plaintiff's affidavit in support of the motion stated for the first time that he had not received actual notice of the October 18 conference and speculated that the notice had been sent to his former address at 911 Park Avenue. Plaintif
Page 1 2 3 4 5 Vermont Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|