Jack C. Keir, Inc. v. Robinson & Keir Partnership

552 A.2d 403, 150 Vt. 648, 1988 Vt. LEXIS 135

• Court: Supreme Court of Vermont
• Decided: July 15, 1988
• Docket: No. 88-058
• Status: Published

Opinion

Appellant Lenord Robinson appeals from a judgment awarding appellee corporation judgment on a note. Judgment was entered December 14, 1987, and timely notice of appeal was filed on January 11,1988.

Though the matter had been heard by a court consisting of Superior Judge James L. Morse, presiding, and Assistant Judge Patricia B. Jenson, only Judge Morse signed the December 14, 1987, opinion and order which contained the court’s findings. Appellant noted the issue of the proper execution of the opinion and order in the docketing statement filed with this Court in accordance with V.R.A.P. 3(f), and on receipt of appellant’s docketing statement, appellee on March 7, 1988, wrote the clerk of the Washington Superior Court, asking that the omission of her signature be brought to Judge Jensen’s attention.

On March 21, 1988, the docket clerk of this Court notified the parties that the record on appeal was completed on that date for purposes of V.R.A.P. 30(a), 31(a) and 32.

On March 23, 1988, the clerk of the Washington Superior Court dispatched a copy of the December 14, 1987, opinion and order signed by Assistant Judge Jensen, noting that “[t]he failure of obtaining Judge Jensen’s signature on the order in December was due to inadvertence in the circulation of orders. The order was not circulated through the Assistant Judges but sent directly down to the Clerk for filing and processing.”

Once an appeal is perfected to this Court, the proper procedure for correcting a defective order arising from oversight or omission is by remand to the trial court, V.R.C.P. 60(a), for a “determination as to whether the findings reflect the beliefs of the assistant judge who participated at trial.” Bevins v. King, 147 Vt. 645, 646, 513 A.2d 41, 41 (1986) (mem.).

Cause remanded to the superior court for consideration by the asssistant judge who participated at trial. Jurisdiction retained in this Court for thirty days.