Vt. R. App. P. 5.1

As amended through November 4, 2024

Rule 5.1 - Collateral Final Order Appeals

(a)Motion for Permission to Appeal.

(1) On a party's motion in a civil or criminal action, the superior court may permit an appeal from an interlocutory order or ruling if the court finds that the order:

(A) conclusively determines a disputed question;

(B) resolves an important issue completely separate from the merits of the action; and

(C) will be effectively unreviewable on appeal from a final judgment.

(2) A request for permission to appeal must be filed within 14 days after entry of the order or ruling appealed from.

(3) The superior court's order must state the grounds for its decision to grant or deny the motion and specify whether and on what conditions the proceedings are to be stayed.

(b)Motion for Permission Denied.

(1) If the superior court denies the motion for interlocutory appeal, or denies a stay pending an appeal, the court must allow adequate opportunity for the moving party to contact a single justice of the Supreme Court for a stay. The contact may be made by email or telephone or in some other manner ordered by the superior court.

(2) If the motion is denied, the moving party may, within 14 days after entry of the denial, file a motion for permission to appeal in the Supreme Court. The motion and supporting documents must include:

(A) the questions of law and a statement of the facts necessary to understand the motion;

(B) the reasons why an interlocutory appeal should be allowed or a stay granted;

(C) the written order, if any, from which an appeal is sought; and

(D) the order of denial.

(3) The moving party must serve the motion and supporting documents on all other parties.

(4) Within 14 days after service of the motion, any party may file and serve a response to the motion.

(5) The matter will be determined on the motion and response without oral argument unless the Supreme Court orders otherwise. If the motion for permission to appeal is granted, the moving party must pay any required entry fee to the Supreme Court clerk within 14 days of entry of the order accepting the appeal.

(c)Motion for Permission Granted.

(1) The superior court clerk will transmit the order permitting appeal to the Supreme Court clerk.

(2) Upon receipt of the order permitting appeal, the Supreme Court clerk will open the appeal. If the Supreme Court determines that the relevant standard is met and accepts the appeal, it will be considered and determined in the Supreme Court as provided by the rules for other appeals. Any required entry fee must be paid by the appellant within 14 days after entry of the order accepting the appeal.

(3) A decision to allow a collateral final order appeal by the superior court or by the Supreme Court does not divest the superior court of jurisdiction over the remainder of the action.

(d)Dismissal in the Supreme Court.

(1) At any time after the docketing of the appeal, the appellee may move to dismiss the appeal on the grounds that permission to appeal was improvidently granted; or move to vacate or modify the stay.

(2) The motion must contain a statement of the law and facts necessary for ruling on the motion.

(3) The Supreme Court may consider the motion immediately or may wait until the time set for consideration of the appeal.

(4) If - on its own or the appellee's motion - the Supreme Court finds that the matter is not appealable or that the stay should be vacated or modified, it may dismiss the appeal, modify or vacate the stay, or take any other appropriate action.

Vt. R. App. P. 5.1

Added April 18, 1989, eff. 5/1/1989; amended Dec. 14, 1989, eff. 3/1/1990; 10/11/2006, eff. 12/11/2006; 6/11/2013, eff. 9/3/2013; amended Sept. 20, 2017, eff. 1/1/2018; amended Dec. 10, 2019, eff. 3/2/2020; amended July 13, 2021, eff. 8/17/2021.

Reporter's Notes-2021 Amendment

Rule 5.1 is revised to update its requirements consistent with current practice and the implementation of an electronic case management system and electronic filing.

Rule 5.1(b)(1) indicates that when a motion for interlocutory appeal and a stay is denied by the superior court, the moving party can contact the Supreme Court by email in addition to telephone.

Paragraphs (b)(2) and (3) are amended to clarify the contents of the motion for permission to appeal that must be filed in the Supreme Court and what must be served. Rule 5.1(b)(4) is amended to clarify that any party can file a response to a motion for a collateral final order appeal. Rule 5.1(b)(5) provides that the entry fee must be paid within 14 days of when the Supreme Court accepts the appeal.

Rule 5.1(c)(1) and (2) is amended to provide that when the superior court grants permission to appeal, the Supreme Court clerk opens the appeal, the Court determines whether the standard for interlocutory appeal is met, and the entry fee must be paid within 14 days of an order accepting the appeal.

For all appeals under this rule, the fee is due once the Supreme Court accepts the appeal. Electronic filers can pay the fee through the electronic filing system. Efilers and Nonelectronic filers may also mail or deliver a check to the Supreme Court. If the Supreme Court does not accept the appeal, no fee is required. If accepted, a case follows the rules for other appeals. For example, the docketing statement and transcript order will be filed after the appeal is accepted.

Reporter's Notes-2020 Amendment

Rule 5.1(c)(1) 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. See Reporter's Notes to Rule 3. The rule is amended to allow an order to be "transmitted" instead of "mailed" to allow electronic or other types of transmission. The term "docket entries" is replaced with the more general term "record of actions."

Reporter's Notes-2018 Amendment

Rules 5.1(a)(2) and 5(b)(2) and (4) are amended to conform their 5-day and 10-day time periods to the simultaneous amendment of V.R.C.P. 6(a) and for internal consistency with appellate motion practice.

5. That Rules 6(a)(1), (4) and (6), and 6(b)(2) and (10) (B) of the Vermont Rules of Appellate Procedure be amended to read as follows (new matter underlined; deleted matter struck through):