Vt. R. App. P. 3

As amended through November 4, 2024

Rule 3 - Appeal as of Right - How Taken

(a)In General. A judgment that is reviewable as of right in the Supreme Court may only be reviewed by appeal in accordance with these rules. An appeal from a judgment preserves for review any claim of error in the record, including any claim of error in any of the orders specified in Rule 4(b). An appeal designated as taken from an order specified in Rule 4(b) will be treated as an appeal from the judgment.

(b)Filing and Serving the Notice of Appeal.

(1)In General.

(A) Except as provided in paragraph (2), an appeal as of right is taken by filing a notice of appeal with the superior court clerk within the time allowed by Rule 4. Any entry fee required under 32 V.S.A. § 1431 is due at the time for filing the notice of appeal. For appeals from executive-branch administrative boards or agencies, any required entry fee must be paid within 14 days after the Supreme Court clerk dockets the appeal.

(B) The appellant must:

(i) provide a copy of the notice of appeal to the Supreme Court clerk;

(ii) serve a copy of the notice of appeal on counsel of record for each of the other represented parties to the appeal; and

(iii) serve a copy of the notice of appeal on any self-represented party.

(C) Service is sufficient despite the death of a party or a party's counsel.

(D) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the appeal's validity, but is a ground for the Supreme Court to take any appropriate action, including dismissal.

(2)Sentence of Life Imprisonment.

(A) In a criminal case resulting in a sentence of life imprisonment, an appeal will be entered without the filing of a notice of appeal, except that a notice of appeal must be filed by the defendant in a case in which

(i) the defendant has, with the advice of counsel, waived his right to appeal on the record in open court, or

(ii) the defendant has, with the advice of counsel, entered a plea of guilty or nolo contendere to the underlying charge.

(B) When an appeal is entered without the filing of a notice of appeal in accordance with subparagraph (A), the following procedures will apply:

(i) The date of entry of judgment will be treated as the date from which all time periods will run that would otherwise be triggered by the filing of a notice of appeal.

(ii) The judge will direct the clerk to transmit a copy of the notice of entry of judgment required by V.R.Cr.P. 56(d), and the record of actions, to the Supreme Court clerk.

(iii) The appeal will be docketed in the Supreme Court and the record and transcript prepared and forwarded as provided in these rules for appeals in other criminal cases. The Supreme Court will review the record in the interests of justice and consider any claim of error as if a notice of appeal had been filed.

(c) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a superior court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the Supreme Court on its own motion, or a party's motion, or by stipulation.

(d) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as "all plaintiffs," "the defendants," "the plaintiffs A, B, et al.," or "all defendants except X";

(B) designate the judgment, order, or part thereof being appealed;

(C) name the court to which the appeal is taken;

(D) indicate if the appeal is from a proceeding under Chapter 51 and 53 of Title 33; and

(E) be signed by the appellant or the appellant's attorney.

(2) A notice of appeal filed by a self represented person is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.

(4) An appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.

(e)Docketing Statements. Within 14 days after taking an appeal, appellant must file a docketing statement using a form prescribed by the clerk. Appellee may file a docketing statement within 14 days after service of appellant's docketing statement.

Vt. R. App. P. 3

Amended March 2, 1973, eff. 10/1/1973; Supreme Court order April 9, 1974; Jan. 14, 1986, eff. 3/1/1986; 11/25/1986, eff. 3/1/1987; 8/7/1990, eff. 10/15/1990; 2/22/1996, eff. 7/1/1996; 4/30/1999, eff. 7/1/1999; 7/6/1999, eff. 10/1/1999; 10/19/1999, eff. 12/31/1999; 3/25/2003, eff. 7/1/2003; 6/17/2009, eff. 5/28/2009; 2/24/2010, eff. 4/26/2010; 2/6/2013, eff. 4/8/2013; 6/11/2013, eff. 9/3/2013; 8/12/2013, eff. 8/12/2013; 8/5/2015, eff. 10/5/2015; amended Sept. 20, 2017, eff. 1/1/2018; amended Dec. 10, 2019, eff. 3/2/2020; amended July 13, 2021, eff. 8/17/2021; amended April 1, 2024, eff. 7/1/2024.

Reporter's Note-2024 Amendment

Rule 3(e) is amended to make the appellee's docketing statement optional. In many appeals, the appellee's docketing statement is cumulative and not necessary for the Court or parties. Although the filing is no longer mandatory, as a matter of practice an appellee should consider whether filing one is useful in a particular case. For example, an appellee who wants to state a position different from the appellant on summary disposition under V.R.A.P. 33.2 should file a docketing statement to do so. In some cases an appellee may wish to correct a material error or omission in the appellant's docketing statement.

In practice, an appellee should also file a docketing statement to note a disagreement with appellant regarding transcripts or other record issues. The appellee remains responsible under V.R.A.P. 10(b)(5) to timely designate additional parts of the proceeding to be included in the record on appeal if the appellee disagrees with the appellant's designation of transcripts.

An appellee who intends to participate in the appeal but does not file a docketing statement should enter a timely appearance. See V.R.A.P. 25(b) (documents filed after deadline for filing appellee's docketing statement do not need to be served on party that has neither filed docketing statement nor entered appearance in Supreme Court.)

The phrase "taking an appeal" usually means the date the notice of appeal is filed, but it also refers to the date an appeal is accepted under Rules 5, 5.1, or 6 of the Vermont Rules of Appellate Procedure. Typically, the order accepting an appeal under those rules includes a deadline for filing a docketing statement.

Reporter's Notes-2021 Amendment

Rule 3(b)(1)(A) is amended to clarify that in appeals from executive-branch administrative boards and agencies any required entry fee must be paid within 14 days of when the appeal is opened. Executive-branch appeals have always been filed with the board or agency where the decision on appeal was made. Traditionally, appellants provided a check to the board or agency to be forwarded to the Supreme Court. With the implementation of electronic filing and electronic case management, most agencies will transmit the appeal to the Supreme Court electronically, making it difficult to send a paper check. Once the clerk opens the appeal in the Supreme Court, efilers can pay the fee through the electronic filing system. Efilers and nonelectronic filers may also mail or deliver a check to the Supreme Court.

Rule 3(b)(1)(B) is amended to indicate that although the notice of appeal must be served on counsel of record and any self-represented parties, a copy must be sent to the Supreme Court clerk. For electronic filers, the copy can be sent to the Court by using the courtesy copy function in File and Serve and using the general Supreme Court email address, jud.supremecourt@vermont.gov.

Rule 3(d)(2) is deleted. It previously required attorneys and self-represented litigants to include an eCabinet registration number. Although registration remains a requirement under Administrative Order 44, it is not necessary to put the number on filings. The remaining paragraphs are renumbered.

Minor wording changes are made to reflect more common word usage. In Rule 3(b)(1)(A), the word "permitted" is deleted so the rule refers to simply "an appeal as of right" to avoid any confusion with appeals by permission under separate rules. In Rule 3(b)(1)(D), the article "a" is added before the word ground. In Rule 3(b)(2)(B)(iii), the final sentence is amended to "had" instead of "has."

Reporter's Notes-2020 Amendment

Rule 3(b)(2)(B)(ii) is amended to update its language in two ways in anticipation of the new case management system, which will be rolled out in phases throughout the state. With the new case management system, there will be both electronic filing and electronic case files. The rollout will initially be in divisions of the superior court, and the Supreme Court will be at the end of the rollout period. The amendments to the appellate rules are made to accommodate appeals from cases that were filed under the new case management system and have electronic case files. When the case management system is implemented in the Supreme Court, further amendments to the appellate rules will be required.

The rule is amended to use "transmit" instead of "mail" to allow electronic or other types of transmission of the notice of entry of judgment. The term "docket entries" is replaced with the more general term "record of actions" in anticipation of the new case management system.

Rule 3(d)(2) is amended to clarify that the reference in that rule is to the 2010 Vermont Rules for Electronic Filing.

Reporter's Notes-2018 Amendment

Rule 3(e) is amended to conform its 10-day time periods to the simultaneous amendment of V.R.C.P. 6(a). See Reporter's Notes to that amendment.