Rule 60(b) Is Not a Second Appeal: Clear-and-Convincing Proof Required for Fraud, and Procedural Defaults Bar Relitigation

Introduction

Case: James Jerome, Jr. v. Kerry Raheb and Renee Houston (Vt. Sup. Ct., May 8, 2026, Entry Order).
Posture: Defendants appealed the civil division’s denial of their motion for relief from judgment under Vermont Rule of Civil Procedure 60(b)(3) and 60(b)(6), alleging fraud, denial of due process, and judicial bias.

The dispute began as a neighbor conflict over an easement used for ingress and egress. Plaintiff sued alleging nuisance, intentional interference with prospective business relationships, and intentional infliction of emotional distress, asserting defendants blocked access to the driveway. The civil division granted plaintiff partial summary judgment on liability, held a damages hearing (which defendants did not attend), and entered final judgment. Defendants then sought to vacate that judgment through Rule 60(b), primarily framing their challenges as “fraud.”

Key issues: (1) What evidentiary showing is required to obtain Rule 60(b)(3) relief for fraud? (2) When do fraud allegations rise to “fraud on the court” under Rule 60(b)(6)? (3) Can Rule 60(b) be used to revisit unappealed merits rulings (including summary judgment) or to inject defenses/counterclaims not timely raised? (4) What is required to pursue a recusal claim based on alleged bias?

Nonprecedential status: The order is issued by a three-justice panel and expressly states such decisions “are not to be considered as precedent.” Nonetheless, it is a useful synthesis of Vermont standards governing post-judgment relief motions and related procedural doctrines.

Summary of the Opinion

The Vermont Supreme Court affirmed. It held that:

  • Defendants did not establish fraud by the required clear-and-convincing standard under Rule 60(b)(3), nor the “egregious misconduct” necessary for “fraud on the court” under Rule 60(b)(6).
  • The trial court acted within its discretion in rejecting “excusable neglect” arguments tied to defendants’ failure to attend the damages hearing, where defendants had notice and did not seek a continuance.
  • Defendants could not use Rule 60(b) to raise unrelated accusations or to revive defenses/counterclaims they failed to plead; Rule 60(b) is not a substitute for appeal or for revisiting deliberate litigation choices.
  • Bias/recusal claims were properly denied for failure to comply with procedural requirements (including an affidavit) and because adverse rulings alone do not demonstrate bias.
  • Challenges to the underlying summary judgment were not preserved because defendants did not appeal the underlying judgment, and Rule 60(b) cannot be used to relitigate resolved issues.

Analysis

Precedents Cited

Pierce v. Vaughan, 2012 VT 5, ¶ 9, 191 Vt. 607 (mem.)

The Court used Pierce v. Vaughan to frame the appellate standard: Rule 60 motions are committed to the trial court’s discretion and will not be reversed absent a clear abuse. This deferential posture matters—many Rule 60 appeals fail not because the moving party’s theory is impossible in law, but because the trial court’s evaluation of the record falls within a permissible range of judgment.

Gavala v. Claassen, 2003 VT 16, ¶ 5, 175 Vt. 487 (mem.)

Gavala supplies the evidentiary burden for Rule 60(b)(3): fraud must be shown by “clear and convincing evidence.” The Court applied this to defendants’ allegations about the easement and plaintiff’s business operations, concluding the trial court could reasonably find the showing insufficient.

Godin v. Godin, 168 Vt. 514, 519 (1998)

Godin was pivotal in two ways. First, it underscores that a finding of fraud—particularly “fraud on the court”—is reserved for “the most egregious misconduct” and must be supported by “clear, unequivocal and convincing evidence.” Second, it articulates the concept of an “unconscionable and calculated design to improperly influence the court” as the touchstone for Rule 60(b)(6) “fraud on the court.” The Court used Godin to affirm that defendants’ accusations (many generalized or unrelated) did not approach this threshold.

Riehle v. Tudhope, 171 Vt. 626, 627 (2000) (mem.)

Riehle provides the anti-relitigation principle: Rule 60(b) cannot substitute for a timely appeal and cannot provide relief from “an ill-advised tactical decision” or a “free, calculated, and deliberate choice of action.” Here, defendants’ failure to raise certain matters as counterclaims/defenses, and their nonappearance at the damages hearing, were treated as choices (or at least consequences) that Rule 60(b) does not readily undo.

Ainsworth v. Chandler, 2014 VT 107, ¶ 16, 197 Vt. 541

The Court cited Ainsworth for a core recusal principle: adverse rulings alone are not evidence of bias. This foreclosed defendants’ principal appellate narrative that a pattern of unfavorable decisions proved prejudice.

Ball v. Melsur Corp., 161 Vt. 35, 40 (1993), abrogated on other grounds by Demag v. Better Power Equip., Inc., 2014 VT 78, 197 Vt. 176

Ball supplies the abuse-of-discretion standard for reviewing disqualification decisions. The Court noted Ball was abrogated on other grounds by Demag, but relied on the continuing relevance of Ball’s review standard to uphold denial of recusal, especially given defendants’ failure to comply with procedural requirements.

Aerie Point Holdings, LLC v. Vorsteveld Farm, LLC, 2024 VT 29, ¶ 11, 219 Vt. 261

This case reinforced the boundary between Rule 60(b) and appellate review: Rule 60(b) “is not substitute for appeal” and “does not allow relitigation of issues that have been resolved by the judgment.” The Court used it to reject defendants’ attempt to attack the summary judgment on liability through the vehicle of a post-judgment motion.

Lussier v. Truax, 161 Vt. 611, 612 (1993) (mem.)

In response to defendants’ contention that summary judgment required a hearing, Lussier stands for the proposition that no hearing is required before granting summary judgment (consistent with V.R.C.P. 56(f)). The Court treated this as an additional, merits-level rebuttal even though it held the argument was not properly preserved via appeal from the underlying judgment.

In re White, 172 Vt. 335, 343 (2001)

The Court invoked In re White for preservation principles: issues must be presented with “specificity and clarity” to give the trial court a fair opportunity to rule. This was applied to defendants’ claim that they were prejudiced by the final judgment being sent to an outdated address—an issue they did not properly raise below (e.g., via extension request or in the Rule 60 motion).

Legal Reasoning

1) High threshold for fraud-based relief under Rule 60(b)(3)

The Court treated defendants’ “fraud” allegations as requiring a rigorous evidentiary showing. Under Rule 60(b)(3), it is not enough to assert wrongdoing or dispute underlying facts; a movant must present clear and convincing evidence that fraud affected the judgment. The civil division found defendants’ allegations lacked the necessary factual support (especially regarding the easement and plaintiff’s business), and the Supreme Court held that finding was within the court’s discretion.

2) “Fraud on the court” under Rule 60(b)(6) is reserved for the most egregious misconduct

By citing Godin v. Godin, the Court reaffirmed that Rule 60(b)(6) fraud on the court is extraordinary—aimed at conduct designed to corrupt the judicial process itself, not ordinary disputes about truthfulness or litigation behavior. Defendants’ broad accusations did not describe an “unconscionable and calculated design to improperly influence the court,” so the trial court permissibly denied relief.

3) Notice, continuances, and “excusable neglect” in the context of missing a damages hearing

Defendants argued their absence was due to a family death and lack of counsel. The civil division emphasized notice and the absence of any request to continue the hearing. The Supreme Court underscored record-based timing problems: the hearing occurred July 7, 2025, but the death was not mentioned until an August 22, 2025 reply memorandum. Given undisputed notice and no timely request for continuance, the trial court was entitled to find the proffered reasons unsupported by the required level of proof.

4) Waiver/forfeiture: Rule 60(b) cannot be used to inject unpled counterclaims or defenses

The civil division observed many allegations were unrelated to the easement dispute and not pertinent to vacating judgment. For allegations arguably connected, the court reasoned they should have been raised as counterclaims under V.R.C.P. 13(a) (compulsory counterclaims) and were therefore waived. The Supreme Court approved this approach and anchored it in the principle from Riehle v. Tudhope: Rule 60(b) does not rescue parties from deliberate choices or serve as a do-over for missed litigation opportunities.

5) Recusal procedure and the insufficiency of “adverse rulings” as proof of bias

The civil division treated defendants’ bias assertions as a recusal request and referred it to the Chief Superior Judge under V.R.C.P. 40(e)(3). The Chief Superior Judge denied it because defendants failed to supply an affidavit stating the reason for disqualification as required by V.R.C.P. 40(e)(2). On appeal, defendants’ substantive claim of bias rested on the fact they lost. Under Ainsworth v. Chandler, that is not evidence of bias. Applying the abuse-of-discretion review standard from Ball v. Melsur Corp., the Supreme Court affirmed.

6) Preservation and the “Rule 60(b) is not an appeal” boundary

Defendants’ attempt to challenge summary judgment failed because they did not appeal the underlying judgment; Rule 60(b) cannot be used to relitigate the merits. The Court relied on Aerie Point Holdings, LLC v. Vorsteveld Farm, LLC to reinforce that post-judgment relief is not a substitute for timely appellate review. Even so, the Court added that summary judgment does not require a hearing, citing V.R.C.P. 56(f) and Lussier v. Truax.

Impact

  • Reinforcement of the exceptional nature of Rule 60(b) fraud relief: The order reiterates that fraud allegations must be supported by strong, specific evidence; generalized accusations or factual disagreements—especially ones untethered to the judgment—will not suffice.
  • Procedural rigor matters: Failure to attend a noticed hearing without seeking a continuance, failure to plead counterclaims/defenses in the proper procedural posture, and failure to comply with recusal-motion affidavit requirements each independently undermined defendants’ post-judgment strategy.
  • Clear boundary between direct appeal and collateral attack: The decision strengthens the practical message to litigants that challenges to summary judgment (or other merits rulings) must be made via timely appeal, not repackaged as Rule 60(b) claims.
  • Briefing quality and appellate review: Although the Court declined to dispose of the appeal for inadequate briefing under V.R.A.P. 28, it noted the deficiencies. Future litigants should expect that poorly supported bullet-point arguments risk waiver or summary rejection.

Complex Concepts Simplified

  • Rule 60(b)(3) (fraud): A rule allowing a court to reopen a final judgment if the opposing party’s fraud, misrepresentation, or misconduct materially affected the result. The movant must prove fraud with strong evidence—more than “maybe,” and more than ordinary disagreement.
  • Rule 60(b)(6) (fraud on the court): A narrow “catchall” for extraordinary situations—typically conduct that corrupts the judicial process itself (e.g., deliberate schemes to improperly influence the court), not routine litigation sharp practices.
  • Clear and convincing evidence: A heightened proof standard requiring evidence that makes the claim highly probable, stronger than a “preponderance” but below “beyond a reasonable doubt.”
  • Compulsory counterclaim (V.R.C.P. 13(a)): A claim arising out of the same transaction/occurrence that must be raised in the same lawsuit or it may be lost. Courts enforce this to prevent piecemeal litigation.
  • Preservation: To raise an issue on appeal, you generally must first present it clearly to the trial court in time for the court to address it.
  • Recusal/disqualification (V.R.C.P. 40(e)): A process to remove a judge for legally cognizable bias or conflict. It requires a properly supported motion, including an affidavit stating reasons; losing rulings alone is not proof of bias.
  • Summary judgment (V.R.C.P. 56): A decision without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Vermont procedure does not require a hearing before granting it.

Conclusion

This entry order consolidates several practical and doctrinal guardrails around post-judgment practice in Vermont: fraud-based Rule 60(b) relief demands clear, case-specific proof; “fraud on the court” is reserved for truly extreme misconduct; Rule 60(b) cannot be used to relitigate issues that should have been raised through counterclaims, at hearings, or on direct appeal; and claims of judicial bias must satisfy procedural requirements and cannot rest on adverse rulings alone. Even as a nonprecedential panel disposition, the decision provides a clear roadmap for how Vermont courts police the finality of judgments against collateral attack framed as “fraud.”