Wednesday, May 23, 2018

Civil Procedure. Court affirms voluntary dismissal by plaintiff, despite “two-dismissal “ rule, because the effect of the dismissal is not ripe until a third action is filed.

Federal National Mortgage Association v. Johnston, 2018 VT 51 [filed May 4, 2018] 

EATON, J. Defendants Marjorie Johnston and Kamberleigh Johnston appeal the voluntary dismissal without prejudice filed by plaintiff bank Federal National Mortgage Association in this eviction action. On appeal, defendants argue that because a prior eviction action filed by bank had been dismissed, this case should have been dismissed with prejudice. Defendants also contend that the court erred in denying their motion to reconsider without a hearing and not dismissing the case on mootness grounds. We conclude that the effect of the voluntary dismissal is not ripe until a third action is filed and affirm.

Under Vermont Rule of Civil Procedure 41(a), a plaintiff can dismiss a case “without order of court” by filing a notice of dismissal if it is before the adverse party files an answer. A voluntary dismissal is usually without prejudice, “except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court.” V.R.C.P. 41(a)(1). This is known as the two-dismissal rule.

Because the dismissal is effective upon filing and without court order, there is a question whether the court retains authority after the dismissal to decide whether the two-dismissal rule applies.  We have held in a different context, that “[i]n general, a court should not dictate preclusion consequences at the time of deciding a first action.”

We conclude that defendants’ argument concerning the two-dismissal rule was not properly before the trial court and will become ripe only when and if a third action is filed. If a third action is filed, at that point, the court can determine the facts of the prior two actions and decide if the two-dismissal rule applies.

Monday, May 21, 2018

Medical malpractice. Strict compliance with certificate-of -merit statute. Statute of limitations not tolled.

Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 [5/18/2018]

SKOGLUND, J. This is a consolidated appeal involving two successive malpractice actions brought by the executor of a decedent’s estate against the clinic where the decedent received treatment prior to her death and against the physician assistant who treated her. The trial court dismissed the first action because plaintiff failed to file the certificate of merit required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely. We conclude that the trial court properly dismissed both cases and therefore affirm.

Plaintiff contends that we should reverse because unlike the plaintiff in McClellan, he “substantially complied” with § 1042(a) by investigating the claim and providing defendants with an expert report that was equivalent to the certificate of merit prior to filing suit. We make explicit what we implicitly held in McClellan, namely, that § 1042’s requirement that a certificate of merit be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is “entirely omitted from the original complaint,” dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. McClellan, 2017 VT 13, ¶ 25. Strict enforcement of the certificate of merit requirement and the statute of limitations does not offend the Common Benefits Clause.

We also reject plaintiff’s argument that dismissal for failure to file a certificate of merit is a dismissal for lack of subject matter jurisdiction, and therefore the statute of limitations was tolled by 12 V.S.A. § 558. Because the failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action, 12 V.S.A. § 558 does not save plaintiff’s claim, and the trial court properly dismissed the second action.

Wednesday, January 17, 2018

Tuition benefits provided by employer are an “other advantage” that constitute part of claimant’s wages for purposes of workers compensation award.

Haller v. Champlain College, 2017 VT 86 [filed 9/29/2017]

ROBINSON, J. The question in this workers’ compensation case is whether employer Champlain College is obligated to include in claimant Kimberly Haller’s average weekly wage calculation the value of tuition-free college credits she earned in accordance with employer’s graduate tuition policy. On cross-motions for summary judgment, the Commissioner of the Department of Labor concluded that the tuition benefits provided by employer and used by claimant was an “other advantage” that constituted part of claimant’s wages. 21 V.S.A. § 601(13). We agree and affirm.

EATON, J., dissenting. The tuition benefit at issue in this case is not provided to claimant as part of her remuneration and should not be included in the calculation of claimant’s average weekly wage. The majority’s decision conflicts with the plain language of the Workers’ Compensation Act and with controlling case law, and represents a vast judicial expansion of the definition of wages. For these reasons, I dissent. I am authorized to state that Justice Skoglund joins this dissent

Pre-eviction notice is required under mobile home parks act.

Shires Housing, Inc. v. Brown,2017 VT 60 [filed 7/21/2017]

EATON, J. This interlocutory appeal arises out of a mobile home park eviction in which landlord, Shires Housing, Inc., failed to provide tenant, Carolyn Brown, with written notice of tenancy termination before filing for eviction under the Mobile Home Parks Act. The trial court denied defendant’s Vermont Rule of Civil Procedure 12(b)(6) motion to dismiss, ruling that 10 V.S.A. § 6237(a)(3) contains an exception to the notice requirement. Because we conclude that the relevant provision of the Mobile Home Parks Act is ambiguous and because the available tools of statutory interpretation all indicate that the Act requires pre-eviction notice, we reverse.

SKOGLUND, J., dissenting. A co-tenant engaged in drug activity in tenant’s mobile home; this illegal activity substantially violated the lease for the lot where tenant’s mobile home is located. Subsequently, and without providing tenant with written notice of the intent to initiate eviction proceedings, landlord commenced eviction proceedings by filing a complaint against tenant in superior court. Landlord’s action was supported by 10 V.S.A. § 6237(a), which  demonstrates a plain legislative intent to dispense with notice when a leaseholder commits a substantial violation of the lease terms. I dissent

SCOVT interprets zoning ordinance and permit conditions de novo, without deference to environmental court.

In re Confluence Behavioral Health, LLC. , .2017 VT 112 [filed 12/8/2017]

EATON, J. The Environmental Division approved the issuance of a conditional use permit for Confluence Behavioral Health, LLC’s proposed community therapeutic residence in Thetford. A group of neighbors appeal the decision. Neighbors contend that the Environmental Division improperly concluded that Confluence’s therapeutic community residence (the Project) was a health care facility, and thus was an allowed conditional use under the Thetford zoning ordinance. We affirm.

Applying our own statutory interpretation to the evidence, we affirm the Environmental Division’s determination that Confluence’s therapeutic community residence is a “health care facility” under the Thetford Zoning Bylaws and, as such, is an allowed conditional use in Thetford’s Rural Residential area.

We review zoning ordinances and municipal permit conditions according to the principles of statutory construction. Wagner & Guay, 2016 VT 96, ¶ 11. We approach the interpretation of such ordinances and permits as a legal question that we resolve without deference to the trial court. See In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 9, ___ Vt. ___, 143 A.3d 1086 (stating that this Court proceeds “with a nondeferential, on-the-record review” of issues of law and statutory interpretation); see also In re Jenness & Berrie, 2008 VT 117, ¶ 26, 185 Vt. 16, 968 A.2d 316 (“To the extent that the setback issues raises questions of law, our review is de novo.”).

To the extent that we have suggested otherwise in prior decisions, we overrule those statements We now overrule prior cases which afforded deference to the Environmental Division’s interpretation of a permit condition or a local zoning ordinance. Henceforth, we will review the Environmental Division’s interpretation of permit conditions and local zoning ordinances without deference.

Landlord/ tenant. SCOVT affirms no-pet policy. Although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal .

Gill Terrace Retirement Apartments, Inc. v. Johnson, 2017 VT 88 [filed 10/6/2017] 

SKOGLUND, J. Tenant Marie Johnson appeals the trial court’s conclusion that she violated two material terms of her residential rental agreement: a “no-smoking” policy and a “no pets” policy. We affirm based on the no-pets violation. The court did not err in concluding that tenant was not entitled to a reasonable accommodation for a specific emotional support animal. Given our holding, we find it unnecessary to address whether the court erred in finding that tenant violated the no-smoking policy

We acknowledge tenant’s attachment to Dutchess and her need for an emotional support animal, but the court properly weighed the evidence regarding Dutchess’s aggressive behavior against landlord’s concerns for the safety and wellbeing of the other residents. As a result, we conclude that the court did not err in affirming landlord’s denial of tenant’s reasonable accommodation request because the evidence established that Dutchess posed a threat to others and that Dutchess would cause substantial physical damages to the property.. We affirm the court's conclusion that, although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal Dutchess.


Civil procedure. Sanctions. SCOVT reverses sanction against mortgagee for repeatedly filing foreclosure actions and failing to prosecute them to completion.

Provident Funding Associates, LP v. Campney, 2017 VT 120  [filed 12/22/2017]

REIBER, C.J. Senior mortgagee appeals the trial court’s order dismissing junior mortgagee as a defendant from senior mortgagee’s fourth foreclosure action against mortgagors. The trial court determined that junior mortgagee was entitled to dismissal as an equitable remedy because senior mortgagee had imposed unnecessary costs on junior mortgagee by repeatedly filing foreclosure actions against defendants and failing to prosecute them to completion. The court’s order had the effect of reordering the priority of mortgages, making senior mortgagee’s interest second in priority to that of junior mortgagee. We reverse and remand for the court to consider monetary sanctions, such as attorney’s fees, as an alternative sanction.

The central question posed by this appeal is whether the court appropriately invoked equitable authority to dismiss junior mortgagee as a defendant as a penalty for senior mortgagee’s conduct in the prior foreclosure actions. The power to impose dismissal as a sanction must be exercised sparingly. This is because “the law favors disposition of cases on their merits.”. Furthermore, “sanctions against litigants should be proportionate to their offenses.” For this reason, we have held that “[t]he use of a dismissal sanction is proper only if the court finds that the defendant would be prejudiced by anything less than dismissal.”

We conclude that the litigation approach employed by senior mortgagee warranted sanction, but the court’s dismissal of senior mortgagee’s claim against junior mortgagee was erroneous. The court should have considered imposing monetary or other less drastic sanctions before proceeding to the extreme sanction of dismissal.

Because mortgagors did not cross-appeal, we do not reach their argument raised in their brief that the trial court should revise its judgment decree for foreclosure and recompute any sums due.. See See Huddleston v. Univ. of Vt., 168 Vt. 249, 255, 719 A.2d 415, 419 (1998) (“An appellee seeking to challenge aspects of a trial court’s decision must file a timely cross-appeal …”).

The trial court was within its discretion in deciding to impose some form of sanction. However, the trial court’s dismissal of senior mortgagee’s action against junior mortgagee was an unsustainable exercise of its inherent authority to discipline litigants and attorneys for their conduct. We therefore reverse the trial court’s order dismissing junior mortgagee as a defendant and remand the action for the trial court to consider monetary sanctions against senior mortgagee