Rule 60(b) Is Not a Do-Over: Previously Available Discovery and Counsel’s Tactical Choices Do Not Justify Reopening a Final Judgment

Introduction

Zephryn Hammond v. University of Vermont Medical Center (Vt. Sup. Ct., Mar. 14, 2025) arises from a long-running employment dispute following the April 2019 termination of Zephryn Hammond, a histology laboratory employee at the University of Vermont Medical Center (UVMMC). The underlying suit alleged violations of the Vermont Fair Employment Practices Act, including race and disability discrimination and retaliation.

After the trial court granted UVMMC summary judgment and the Vermont Supreme Court affirmed in Hammond v. Univ. of Vt. Med. Ctr., 2023 VT 31, the plaintiff returned in 2024 with multiple post-judgment motions seeking to reopen the case under V.R.C.P. 60(b) and to amend the complaint, pointing chiefly to text messages and other materials produced during discovery but allegedly not used by prior counsel at summary judgment. The central issue in this appeal was narrow: whether the trial court abused its discretion in denying the plaintiff’s Rule 60(b) motions (and the related effort to amend).

Note: This decision is an “Entry Order” by a three-justice panel and, as the opinion itself states, is “not to be considered as precedent before any tribunal.” Even so, it is a useful synthesis of Vermont Rule 60(b) limits and the “law-of-the-case” constraint in post-appeal proceedings.

Summary of the Opinion

The Vermont Supreme Court affirmed the civil division’s denials of the plaintiff’s motions to reopen/for relief from judgment under V.R.C.P. 60(b)(1)-(3) and (6), and it upheld the trial court’s refusal to hold a hearing. The Court held that:

  • Rule 60(b)(1) does not provide relief from a party’s or counsel’s tactical choices in how to litigate summary judgment.
  • Rule 60(b)(2) “newly discovered evidence” does not include evidence already produced in discovery and known before judgment.
  • Rule 60(b)(3) fraud/misconduct relief was unwarranted where the plaintiff had the opportunity to contest authenticity/accuracy during summary judgment.
  • Rule 60(b)(6) cannot substitute for a timely appeal and requires a showing akin to manifest injustice, which the plaintiff did not establish.
  • The trial court could deny the motion without a hearing where the motion lacked merit.
  • Because reopening was properly denied, the plaintiff’s request to amend the complaint was moot.
  • The Supreme Court denied plaintiff’s motion to supplement the appellate record with documents not accepted below. See V.R.A.P. 10(a).

Analysis

Precedents Cited

The Court’s reasoning rests on a set of Vermont decisions that collectively frame Rule 60(b) as an extraordinary remedy, not a second chance to re-litigate.

1) Hammond v. Univ. of Vt. Med. Ctr., 2023 VT 31

The Court treated its 2023 decision as dispositive of the merits and factual posture relevant to summary judgment, emphasizing that the present appeal concerns only the denial of post-judgment motions. This earlier case provided the procedural anchor for applying “law-of-the-case” logic: issues resolved on appeal are not reopened through later motion practice simply by recharacterizing arguments or repackaging evidence.

2) Pierce v. Vaughan, 2012 VT 5 and Altman v. Altman, 169 Vt. 562

These cases supplied the controlling appellate posture:

  • Pierce v. Vaughan for the proposition that a Rule 60 motion is committed to the trial court’s discretion and is reversible only if discretion was “withheld or otherwise abused.”
  • Altman v. Altman for both (a) the burden on the movant to show abuse of discretion and (b) the principle that a trial court may decide a Rule 60 motion without a hearing when “totally lacking in merit.”

Together, these authorities significantly narrowed the plaintiff’s appellate path: even if the plaintiff could articulate perceived unfairness, the question was whether the trial judge’s denial was outside the range of reasonable decisions under Rule 60.

3) Okemo Mountain, Inc. v. Okemo Trailside Condos., Inc., 139 Vt. 433

The Court used Okemo Mountain to reject Rule 60(b)(1) relief grounded in “mistake” where the asserted mistake is actually a party’s (or counsel’s) litigation strategy. Here, the plaintiff argued that certain June 2018 text messages were produced in discovery but not submitted by counsel on summary judgment. The Court characterized that omission as a tactical decision, which Okemo Mountain holds is not remediable under Rule 60(b)(1).

4) Riehle v. Tudhope, 171 Vt. 626

Riehle supplied the limiting principle for Rule 60(b)(6): the catchall provision cannot be used as a substitute for a timely appeal or to escape “some other free, calculated, and deliberate choice of action.” The Court applied this to conclude that alleged “injustice” stemming from litigation positions and service disputes did not rise to the level required for 60(b)(6) relief.

5) Luce v. Cushing, 2004 VT 117

In response to the plaintiff’s claim of judicial bias, the Court cited Luce v. Cushing to reiterate that “adverse rulings, no matter how erroneous or numerous,” do not establish prejudice. This precedent helped the Court dispatch the bias argument without re-litigating the merits.

Legal Reasoning

The Court’s reasoning proceeds in a rule-by-rule analysis of the specific Rule 60(b) grounds invoked, coupled with a procedural finality theme: once summary judgment has been entered and affirmed on appeal, post-judgment relief is available only within strict, well-defined channels.

Rule 60(b)(1): “Mistake” is not “I wish we litigated differently.”

The Court treated the plaintiff’s core complaint—counsel did not submit certain discovery materials on summary judgment—as precisely the kind of “in retrospect may seem ill advised” choice that Rule 60(b)(1) does not correct. That is, Rule 60(b)(1) is not a mechanism to rewrite an evidentiary record that could have been presented the first time.

Rule 60(b)(2): “Newly discovered evidence” must truly be newly discoverable despite due diligence.

The text messages and other materials were produced in discovery and thus known (or knowable) before judgment. The Court therefore agreed with the trial court that the plaintiff failed the due-diligence prerequisite embedded in V.R.C.P. 60(b)(2). The practical takeaway: evidence is not “new” merely because it was not used.

Rule 60(b)(3): Fraud/misconduct requires more than post-judgment disagreement with the record.

The plaintiff asserted that some documents were incorrect or “tampered with.” The Court emphasized the plaintiff’s opportunity during summary judgment to challenge authenticity/accuracy or submit contrary evidence. Where alleged irregularities could have been litigated pre-judgment, Rule 60(b)(3) relief is disfavored.

Rule 60(b)(6): The catchall is narrow and cannot function as an untimely appeal.

The Court found no “manifest injustice” warranting reopening, characterizing the plaintiff’s arguments as attempts to revisit the already-decided merits. The decision reinforces that 60(b)(6) is reserved for extraordinary circumstances not covered by (1)-(5), not for dissatisfaction with litigation outcomes.

No hearing required

Relying on Altman v. Altman, the Court endorsed denial without a hearing where there is “no legal basis” to proceed—an important procedural point for trial courts managing repetitive post-judgment filings.

Amendment is moot if the judgment stands

Because the case was not reopened, there was “no further action pending” in the trial court; consequently, the request to amend could not proceed. The Court treated amendment as dependent on first obtaining Rule 60 relief from the final judgment.

Record on appeal cannot be expanded with rejected materials

The Court denied the plaintiff’s motion to supplement the record because the documents were not accepted into the trial record after reopening was denied. Under V.R.A.P. 10(a), the appellate record is defined by what is properly part of the lower-court record, not by what a party wishes had been included.

Impact

  • Finality after appeal: Once summary judgment has been affirmed, Rule 60(b) cannot be used to repackage merits arguments or fill perceived evidentiary gaps.
  • Discipline at summary judgment: Parties must treat summary judgment as the decisive moment to marshal admissible evidence; “we had it, but didn’t use it” will rarely support Rule 60 relief.
  • Fraud allegations must be timely and concrete: If document authenticity or completeness is in dispute, litigants should raise it during discovery or summary judgment, not as a post-judgment strategy.
  • Procedural management: Trial courts are reaffirmed in their authority to deny meritless Rule 60 motions without hearings, and to resist serial filings that effectively seek reconsideration of settled matters.
  • Appellate record boundaries: The decision underscores that appellants cannot unilaterally expand the record on appeal with materials the trial court never admitted.

Complex Concepts Simplified

Summary judgment
A pretrial ruling entered when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
Rule 60(b) relief from judgment
An extraordinary procedure allowing a court to set aside a final judgment for specific reasons (e.g., mistake, truly new evidence, fraud), not simply because the losing party disagrees with the outcome.
“Newly discovered evidence” (Rule 60(b)(2))
Evidence that could not have been found in time for earlier post-trial motions even if the party used reasonable diligence; it is not “new” if it was produced in discovery or otherwise available before judgment.
Tactical decision
A strategic litigation choice (what evidence to file, which arguments to press). Courts generally will not reopen final judgments just because that strategy turned out poorly.
Law-of-the-case doctrine
A principle that issues already decided in the same case—especially by an appellate court—are not revisited in later stages absent exceptional circumstances.
Abuse of discretion (appellate standard)
A highly deferential review standard: the appellate court will affirm unless the trial court’s decision falls outside the range of reasonable choices.
Mootness
A request becomes non-actionable because the underlying condition for deciding it is absent (here, no reopened case means no live platform to amend pleadings).
Record on appeal
The universe of materials the appellate court may consider—generally limited to what the trial court actually had before it and accepted as part of the record.

Conclusion

The Court’s decision affirms a strict boundary around post-judgment practice: V.R.C.P. 60(b) is not a vehicle to redo summary judgment using evidence that was already available, nor is it a workaround for counsel’s choices or an untimely substitute for appeal. By applying Okemo Mountain, Pierce, Altman, Riehle, and Luce, the Court reinforced finality, disciplined use of Rule 60(b), and the principle that the appellate record cannot be expanded with documents rejected below.