dissenting. For three main reasons, I am unable to concur in the Court’s decision affirming the refusal to set aside an order dismissing plaintiff’s complaint. First, the order dismissing the complaint was clearly improper. On defendants’ motion, the superior court scheduled a hearing on a “status conference.” Nothing in the notice suggests that the conference would consider whether to dismiss plaintiff’s complaint for failure to make progress, or that the consequence of nonappearance would be dismissal. When plaintiff, then proceeding pro se, failed to appear at the discovery conference, the court dismissed the complaint under VR.C.E 41(b)(2), apparently based on an oral motion made at the healing. The grounds for this ultimate sanction were plaintiff’s failure to appear at the status conference or to communicate with defendants’ counsel.
Plaintiff had no notice that the failure to appear could result in dismissal. Failure to communicate with defendant, without more, was not grounds for dismissal. See VR.C.E 26(h) (when one party fails to agree to discovery schedule, opposing party may move forward with discovery under VR.C.E 26). Nor could this sanction be imposed for violations of the discovery rules without specific findings of bad faith or deliberate and willful disregard of court orders, and prejudice to defendants. See John v. Medical Ctr. Hosp. of Vt., 136 Vt. 517, 519-20, 394 A.2d 1134, 1135 (1978). The court never made those findings; without some kind of hearing, it could not.
Nor could the court invoke Rule 41(b)(2) based on an ex parte oral motion made without notice at the hearing. Normally, motions must be in writing. See VR.C.E 7(b)(1). Although there is a limited exception for motions made “during a hearing or trial,” the exception does not allow a party “to seek a determination on any matter other than that for which the hearing was noticed to be heard.” Simmon v. Bond, 634 P.2d 1148, 1151 (Kan. Ct. App. 1981); see also Mitchell v. Public Serv. Coordinated Transp., 13 F.R.D. 96, 97 (D.N.J. 1952) (under substantially identical federal rule, counsel may not, without notice, make oral motions in a pretrial conference); Oler v. Supervised Estate of Huckleberry, 504 N.E.2d 349, 351 (Ind. Ct. App. 1987) (oral motions, made in a hearing, may not seek a determination upon matter other than that for which the hearing was noticed).
Plaintiff’s failure to appear at the discovery conference remains a major reason why the superior court, and this Court, have denied him relief. Even in its brief affirmance order, the majority relies upon plaintiff’s failure to offer an excuse for his nonappearance. Since the order exceeded the power of the court, and could not be justified by the nonappearance, I fail to see how the reasons for the nonappearance are particularly relevant. The court should have struck the dismissal irrespective of whether plaintiff had grounds for not appearing.
Second, as we stated in Goshy v. Morey, 149 Vt. 93, 99, 539 A.2d 543, 547-48 (1987):
At least where there has been a dismissal by default or in the nature of nonsuit, we hold that the court deciding the Rule 60(b) motion must hold a hearing to allow oral argument and, if necessary, the taking of evi*566dence. An exception is present where the issues have been fully argued, and evidence taken if applicable, in the ruling on the underlying dismissal or default. Where a hearing is required, the decision must state such findings and conclusions as will enable us to determine the basis for the decision and to show how the court has used its discretion.
Goshy involved a dismissal for failure to identify an expert witness in a medical malpractice case. Its holding is directly applicable here. The superior court held no hearing on the Rule 60(b) motions in this case. Thus, the denial of the motions violates the Goshy rule. If anything, the need for a hearing was much greater here, than in Goshy, because plaintiff was unrepresented in filing the original motion for relief from judgment and there was never a hearing at which both sides appeared.
In holding to the contrary, the Court has relied upon Manosh v. Manosh, 160 Vt. 634, 648 A.2d 833 (1993), and Blanchard v. Blanchard, 149 Vt. 534, 546 A.2d 1370 (1988). Neither of these cases involved a Rule 60(b) motion to reopen a nonsuit, and, as a result, neither is applicable here. Goshy announced a procedural rule for the exact circumstances present here — dismissal of a complaint as a sanction for inaction or failure to comply with a court order —, and the superior court refused to reopen without complying with the Goshy procedural requirement.
Third, I am not as convinced as the majority that the superior court’s skepticism about plaintiff’s factual assertions played no part in its decision. Plaintiff stated in an affidavit that he had not received notice of the discovery conference, probably because he had moved. Defendants filed a counter-affidavit stating why they believed he knew of the conference. In its decision, the court described these affidavits and added “the court’s file includes no indication that the Postal Service returned the notice mailed to the plaintiff.” The added sentence suggests that the court may have been more favorable to plaintiff’s position if it believed his assertion that he did not receive notice of the hearing. If that suggestion is correct, the court resolved a factual dispute without a hearing.
We have the power to remand a case to prevent a failure of justice and do so when the circumstances warrant it. See Courtyard Partners v. Tanner, 157 Vt. 638, 639, 595 A.2d 287, 288 (1991). The circumstances warrant it in this case.