Monday, November 18, 2019

SCOVT holds that the denial of summary judgment based on the sufficiency of the evidence is not subject to appellate review after a trial on the merits.

The Lofts Essex, LLC, v. Strategis Floor Décor Inc., 2019 VT 82 [filed 11/8/2019]

CARROLL, J. Plaintiffs appeal the trial court’s pretrial denial of summary judgment and the court’s final decision ruling in favor of defendant. We conclude that the trial court’s pretrial denial of summary judgment is not reviewable and affirm the final decision granting judgment to defendant.

“[A] party generally cannot appeal from the pretrial denial of a motion for summary judgment.” Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 69, ¶ 14, 199 Vt. 289, 123 A.3d 393 (emphasis added). “Once trial begins, summary judgment motions effectively become moot, and the trial court’s judgment on the verdict after a full trial on the merits supersedes the earlier summary judgment proceedings.” Id. (alterations and quotation omitted).

As is often the case, however, there is an exception to this general rule. As the Second Circuit has explained: A critical distinction exists between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide. Where a motion for summary judgment based on an issue of law is denied, appellate review of the motion is proper even if the case proceeds to trial. Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004).

We conclude that the trial court’s denial of summary judgment here is not reviewable because it was decided on sufficiency-of-the-evidence—not legal—grounds. The trial court denied the plaintiffs’ motion for summary judgment because, although the plaintiffs had produced “compelling evidence that the [spots] must be due to a manufacturing issue,” defendant “ha[d] come forward with sufficient evidence to create a genuine dispute as [their] cause.”

Because the trial court’s denial of summary judgment was based on the sufficiency of the evidence, it is not subject to appellate review after a trial on the merits.


In Lofts Essex the Court announces that a previously recognized rule about preservation of error has an exception that does not apply to the facts of the case.

This begs the question as to the scope of any exception and whether, as a practical matter, there is any  case to which the general rule requiring renewal at trial of summary judgment issues does not apply.

This case, like other Vermont decisions rejecting the applicability of rules that the Court has not adopted,  opens new fields for advocacy. Compare Mead v. W. Slate, Inc., 2004 VT 11, ¶ 20, 176 Vt. 274, 284, 848 A.2d 257, 264 (2004) (Assuming without deciding that Vermont follows “substantial certainty” rule in other States (as opposed to specific intent to injure as necessary basis to abrogate workers compensation immunity), holding that the evidence was insufficient to support a finding that defendants knew to a substantial certainty their actions would result in injury to plaintiff.); Vincent v. DeVries, 2013 VT 34, ¶ 25, 193 Vt. 574, 588–89, 72 A.3d 886, 897 (2013) (Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims, holding that the subject of defendant's representation of plaintiff was not of such a personal and emotional nature that it would support recovery of emotional distress damages).

On one hand the opinion can be read to suggest the general rule narrowly applies only to summary judgment denials based on the sufficiency of evidence.  However, to the extent it exists in federal law, the exception under discussion is itself a narrow one, for "pure" questions of law only. 

The seminal  Second Circuit case denying post-trial review of summary judgment denials  is   Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130- 31 (2d Cir.1999). (Denial of a summary judgment motion is not ordinarily reviewable on appeal from a final judgment entered after trial on the merits). According to this case, the appropriate procedure for appeal of a denial of a motion for summary adjudication is that (1) the party may petition for the right to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b); or (2) if the case proceeds to trial, the party may make and renew motions pursuant to Rule 50 for judgment as a matter of law and appeal the district court's denial of that motion. Massey-Ferguson Inc., 170 F.3d at 132.

In a later case, the Second Circuit held that the rule that the denial of summary judgment may not be appealed after full trial on the merits, “does not apply where the district court's error was purely one of law.” Schaefer v. State Insurance Fund, 207 F.3d 139 (2d Cir. 2000).

In 2011, The U.S. Supreme Court explained that once a case proceeds to trial the “full record developed in court supersedes the record existing at the time of the summary-judgment motion” and appeared to adopt a blanket rule precluding the Schaefer pure-error-of-law exception.  Ortiz v. Jordan, 562 U.S. 180, 183–84, (2011)  (“May a party, as the Sixth Circuit believed, appeal an order denying summary judgment after a full trial on the merits? Our answer is no.”). 

In the wake of Ortiz, some federal appellate courts have cited Ortiz as unqualifiedly answering that a party may never, after a full trial on the merits, appeal an order denying summary judgment,  Other federal appellate courts, including the Second Circuit  distinguish between denials based on genuine issues of material fact and denials based on legal conclusions Joan Steinman, The Puzzling Appeal of Summary Judgment Denials: When Are Such Denials Reviewable?, 2014 Mich. St. L. Rev. 895, 918 (2014) ( critiquing  Ortiz and arguing that appellate review should be allowed of summary-judgment denials after trial, when they rest on a question of law).

The Second Circuit, in dictum at least, recognizes that the “the pure error of law” exception of  Schaefer  continues as an  exception to  the Ortiz general rule  that an order denying summary judgment is not reviewable after a full trial on the merits. Stampf v. Long Island R.R., 761 F.3d 192, 201 n. 2 (2d Cir.2014).   The Stampf court noted references in Ortiz distinguishing  cases that “present purely legal issues capable of resolution with reference only to undisputed facts.” Id.

This resonates with Vermont’s definition, in another context, of a “pure” question of law, as one that “does not depend upon factual distinctions and does not require review of the record.”  In re Estate of Johnson, 158 Vt. 557, 559 (1992)

Thus if the Second Circuit is the model for Vermont practice, the exception to the preservation-at-trial requirement  is a limited one based on the rarely occurring “pure" question of law.

Thursday, October 17, 2019

Divided Court affirms Rule 12(b)(6) dismissal of wrongful termination complaint alleging retaliation for whistleblowing.

Dawn Boynton v. ClearChoice MD, MSO, LLC and ClearChoiceMD, PLLC, 2019 VT 49 [filed August 2, 2019]

CARROLL, J. Plaintiff appeals the trial court’s dismissal of her wrongful termination complaint against her former employer. In her amended complaint, plaintiff alleges that she was terminated from her employment as a medical assistant at defendants’ medical office in Rutland in September 2017 in violation of the covenant of good faith and fair dealing and contrary to whistleblower protections. We affirm.

Because plaintiff was an at-will employee and she has admitted on appeal that the handbook does not modify her status as an at-will employee, her argument that defendants violated the covenant of good faith and fair dealing by terminating her for a pretextual reason fails.

An at-will employee may not be terminated for reasons that violate “a clear and compelling public policy.” Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) An employee seeking to invoke the public-policy exception to at-will employment must demonstrate that her employer’s conduct was “ ‘cruel or shocking to the average [person’s] conception of justice.’ Whether an activity violates public policy is a question of law. Madden v. Omega Optical, Inc., 165 Vt. 306, 314 n.3, 683 A.2d 386, 391 n.3 (1996). Here, the allegations in the complaint do not demonstrate that defendants’ conduct was “cruel or shocking to the average [person’s] conception of justice.” Payne, 147 Vt. at 493, 520 A.2d at 589 (quotation omitted).

Plaintiff cannot state a claim grounded in the facts and allegations of the complaint that defendants violated the handbook’s whistleblower provision, which protects an employee who, in good faith, reports threats to patient safety. The employer’s’ alleged comment cannot reasonably be viewed as having endangered anyone’s health or safety given the timing of the statement. Plaintiff did not f make such an allegation in her complaint.

We conclude that plaintiff has not stated a claim for a violation of a clear and compelling public policy. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 82, 807 A.2d 390, 397 (2002) (affirming summary judgment in favor of employer where plaintiff failed to show that termination was “so contrary to society’s concern for providing equity and justice that there is a clear and compelling public policy against it”). Nor has she stated a claim under the handbook’s whistleblower policy. The trial court therefore properly dismissed this claim as well. Affirmed.

ROBINSON, J., dissenting. I conclude that the allegations in plaintiff’s complaint, and the fair inferences from those allegations, are sufficient to survive a motion to dismiss with respect to plaintiff’s claims that defendants breached the covenant of good faith and fair dealing and wrongfully terminated her in violation of public policy. First, I believe the framework applied by the majority—based on its understanding that plaintiff has not argued that her at-will status has been modified to any degree—overlooks that plaintiff’s claim based on the implied covenant of good faith and fair dealing arises from defendants’ alleged violation of a specific no-retaliation provision in the handbook. Second, given the standards applicable at this stage of litigation, I believe the complaint alleges sufficient facts to support plaintiff’s claims based on retaliatory discharge under a theory based on public policy. Because I conclude that the allegations, considered in their proper light, could support the claims that plaintiff has made, I would deny the motion to dismiss and remand for further proceedings. Accordingly, I respectfully dissent.

PEARSON, Supr. J. (Ret.), Specially Assigned, dissenting. I agree with almost all of what Justice Robinson has written as to why the dismissal of the amended complaint, as a matter of law under Vermont Rule of Civil Procedure 12(b)(6), was premature at this early stage of the litigation. I write separately to emphasize the narrow claims actually made by plaintiff, and also because I believe that (a) it is unnecessary to analyze her public-policy assertions to determine whether those allegations alone state a cause of action, and (b) it is unnecessary for plaintiff to ultimately prove that the physician assistant’s remark presented any actual risk of harm (whether present or future) to defendants’ patient

Divided Court on interlocutory appeal reverses denial of summary judgment and holds Recreational Use Statute immunized defendants from liability for drowning of child on defendants’ “open and undeveloped” land adjacent to a day care.)

Katerina Nolan, as Administrator of the Estate of Parker J. Berry v. Stephen J. Fishman and Susan B. Fishman, 2019 VT 63 [filed September 6, 2019]

SKOGLUND, J. The question presented is whether Vermont’s Recreational Use Statute, 12 V.S.A. §§ 5791-5795, which provides limitations on landowner liability, is applicable to the undisputed tragic facts of the case. We find that the Recreational Use Statute applies and that defendants’ motion for summary judgment should have been granted. Therefore, we reverse the holding of the trial court and remand.

Defendants sought and were granted an interlocutory appeal. They primarily argue that the trial court erred by holding that the Recreational Use Statute did not immunize defendants from liability

Under this law owners who make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.

Most importantly for our analysis, the statute defines “land” as, among other things, “open and undeveloped land, including paths and trails.”. § 5792(2)(A)(i).

The trial court first court concluded that Parker died in the backyard of the daycare, in a portion of defendants’ property that was “seamlessly integrated” with the daycare’s property, and thus the relevant portion of defendants’ land “was not the ‘open and undeveloped land’ that the Legislature had in mind in encouraging landowners to make their land open to the public for general recreation.” As such, the court determined that defendants were not entitled to the protection of Vermont’s Recreational Use Statute and granted in part the estate’s motion for partial summary judgment and denied defendants’ motion for summary judgment

The trial court concluded that the land “was at least partially ‘developed’ for the Daycare Business” due to various “improvements” on the land—namely a sandbox, mowed pathways, and a brook bridge. 4 We disagree with this determination based on the plain language of Chapter 12. The Legislature took care to express that “land” may include paths, trails, water courses, bridges, and walkways. Id. § 5792(2)(A)(i)-(iv). Furthermore, the Legislature expressly stated that “the presence of one or more of the following on land does not by itself preclude the land from being ‘open and undeveloped’: posting of the land, fences, or agricultural or forestry-related structure.” Id. § 5794(c). As protective legislation goes, this is quite comprehensive. We cannot imagine that the Legislature meant to revoke protections from 4 The trial court noted, “[i]t is also conceivable that despite the improvements mentioned, the land involved here is more fairly characterized as ‘open and undeveloped.’ ” Although our conclusion is based on the plain language of the statute, our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.” 8 landowners where, as here, pathways, bridges, and perhaps even sandboxes are built on their otherwise “undeveloped” land.

Our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.”

REIBER, C.J, dissenting. I disagree with the majority in how it applies the law to the facts of this case. In my view, the facts compel us to conclude that defendants’ property was “developed for commercial recreational uses.” 12 V.S.A. § 5792(2)(B)(i). Therefore, the recreational-use statute does not protect defendants from liability, and the trial court’s decision was correct. Accordingly, I respectfully dissent.

In practice, defendants’ land was used for, and developed for, commercial recreational uses, and Parker Berry died while on that property for that commercial recreational use. Therefore, defendants’ land is excluded from protection pursuant to the recreational-use statute with regard to Parker’s death. The trial court did not err in so concluding, and I respectfully dissent. I am authorized to state that Justice Robinson joins this dissent

Divided Court reverses and vacates conviction for impeding a police officer, based on refusal to provide license and registration at traffic stop.

State v. Berard, 2019 VT 65  [filed September 27, 2019

REIBER, C.J. Defendant Stephanie Berard appeals the trial court's denial of her motion for judgment of acquittal following her conviction for impeding or hindering a police officer. We reverse and vacate defendant's conviction.

According to our prior holdings, a defendant violates § 3001 if the defendant (1) takes an action that the defendant has no legal right to do and (2) that action actually results in impeding an officer in the lawful execution of the officer's duties.

Here,the officer instructed defendant to provide him with her driver's license, registration, and proof of insurance. Defendant replied that she she would not provide them defendant was "[c]ombative" and "uncooperative" and her voice was "escalated and raised."

There is no question that defendant's refusal was unlawful. However, we do not conclude that defendant's refusal may, without more, constitute a violation of § 3001. We hold that a civil violation of the motor vehicle code, on its own, may not provide the basis for an impeding-officer offense, even when that violation is intentional.

CARROLL, J., dissenting..The majority concedes that defendant had no legal right to refuse to provide her driver's license and registration to a police officer who pulled her over after having witnessed her commit three motor-vehicle-code violations. Nonetheless the majority vacates defendant's conviction because it assumes that the Legislature did not intend that civil violations could provide the basis for impeding an officer.. I dissent and would affirm the jury's guilty verdict because he State, established each of the essential elements of hindering a law enforcement officer beyond a reasonable doubt.

Defendant had no legal right to refuse to provide her license and registration to the trooper and this impeded him in the lawful execution of his duties: she unjustifiably delayed him at this traffic stop and she forced him to summon and wait for another officer to arrive (who was then diverted from his own work). The Legislature, apparently mindful that it is imperative that Vermonters recognize and respect the authority of our law enforcement officers and obey their legal requests when failing to do so would be unlawful, chose to make impeding an officer in this manner a felony. I therefore would affirm defendant's conviction for impeding an officer and I dissent.

Divided Court reversrs denial of plaintiff’s motion for judgment on the pleadings in Public Record Act case alleging state agency cannot charge for staff time spent in complying with requests to inspect public records.

Doyle v. City of Burlington Police Department, 2019 VT 66 [filed September 13, 2019]

REIBER, C.J.. Reed Doyle appeals the trial court's denial of his motion for partial judgment on the pleadings pursuant to Vermont Rule of Civil Procedure 12(c). In his motion, plaintiff argued that the Burlington Police Department (BPD) unlawfully withheld public records in violation of the Public Records Act (PRA) when it charged a fee for costs that would be incurred by complying with his request. Based on the plain language of the PRA, we hold that the BPD cannot charge for staff time spent in complying with requests to inspect public records. Accordingly, we reverse.

EATON, J., joined by Justice Carroll , dissenting. The Legislature recognized that record requests "entail expending public resources to fulfill requests" and thus established in the PRA "a process for public agencies to charge requesters for the actual costs of copying public records and for staff time associated with fulfilling requests." Sawyer v. Spaulding, 2008 VT 63, ¶ 11, 184 Vt. 545, 955 A.2d 532 (mem.) (citing 1 V.S.A. § 316).

SCOVT reverses dismissal of PCR proceeding, because of procedural unfairness in failing to review amended petition.

In Re Dow, 2019 VT 72 [filed October 4, 2019]

EATON, J. Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. The Defender General's Office reviewed the petition and determined that petitioner's claims lacked merit, pursuant to 13 V.S.A. § 5233(a)(3). Petitioner amended the PCR petition, adding arguments that had not been reviewed by the Defender General's Office, and proceeded without assigned counsel.The State filed a motion for summary judgment, which the PCR court granted. Petitioner appeals the PCR court's dismissal to this Court, arguing that the PCR court erred in granting the State's motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. We reverse and remand for the PCR court to conduct proceedings consistent with this opinion.

The lack of a complete record regarding the court's decision not to grant a second review for the amended petition results in a procedural failing that—in the interest of fairness and due process—requires us to vacate the PCR court's grant of summary judgment in favor of the State and remand for the court to determine whether or not petitioner's amended petition raises claims that may have substance and merit such that additional review by the Defender General's Office is required under 5233.

SCOVT affirms denial of motion to intervene, because -- on de novo review-- the motion was untimely.

State v. Quiros, 2019 VT 68 [Filed October 4, 2019]

CARROLL, J. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appeal an order denying their motion to intervene in the State's enforcement action brought against defendants. We conclude that, under a de novo standard of review, the intervention was untimely, and because untimeliness is a threshold issue under both Rule 24(a) and (b), we affirm.

Intervenors moved under Vermont Rule of Civil Procedure 24(a) and (b) to intervene in this action. Intervenors sought the "full recovery of any judgment obtained in this action" and the "[d]isgorgement and restitution of all earnings, profits, compensation and benefits." They also sought punitive damages The superior court denied the motion to intervene without reference to its timeliness.

A trial court must grant a motion to intervene as of right if it is (1) timely; (2) the intervenor has "an interest relating to the property or transaction" that is the subject of the underlying action; (3) the intervenor would be impaired or impeded in his or her ability to protect that interest depending on the outcome of the action; and (4) the intervenor's interest is not adequately represented by the existing parties. V.R.C.P. 24(a). Permissive intervention is available if the motion is (1) timely and (2) the prospective intervenor's "claim or defense and the main action have a question of law or fact in common." V.R.C.P. 24(b). Vermont Rule 24 is "substantially identical to Federal Rule [of Civil Procedure] 24" with "minor modifications" that are of no consequence to our analysis here. Reporter's Notes, V.R.C.P. 24.

We review the denial of a motion to intervene as of right de novo. In re GMPSolar-Richmond, LLC, 2017 VT 108, ¶ 19, 206 Vt. 220, 179 A.3d 1232 .

However, we review discretionary decisions of trial courts "under an abuse of discretion standard of review." HSBC Bank USA N.A. v. McAllister, 2018 VT 9, ¶ 8, 206 Vt. 445, 182 A.3d 593. We therefore review the denial of a motion for permissive intervention for an abuse of discretion. Helm. v. Helm, 139 Vt. 225, 227, 424 A.2d 1081, 1082 (1981).

Because the timeliness of a motion to intervene is "a matter within the discretion of the court," normally we review the trial court's ruling on timeliness for an abuse of discretion. Ernst v. Rocky Road, Inc., 141 Vt. 637, 639, 450 A.2d 1159, 1160 (1982).

However, when — as here — a trial court denies a motion to intervene but makes no mention of the motion's timeliness, we are left without a ruling to review for an abuse of discretion. In such a case, if there are sufficient facts to decide the issue of timeliness within the record — and assuming neither party is seeking a remand to establish a disputed issue of material fact — then, in accordance with four federal circuit couts of appeal, we review timeliness de novo.

When a motion to intervene is filed, the timeliness requirement under Rule 24(a) and (b) is a threshold question. NAACP v. New York, 413 U.S. 345, 365 (1973) ("Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of [Federal Rule 24] that the application must be `timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.").

An intervenor bears the burden of meeting all of the requirements for intervention, including timeliness. See Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990). The timeliness of a motion to intervene is assessed using a totality-of-circumstances analysis. Ernst, 141 Vt. at 640, 450 A.2d at 1160.

We have identified four factors that may be considered in assessing timeliness: (1) possible harm to plaintiffs; (2) an intervenor's ability to have sought intervention sooner; (3) the progress of the case; and (4) the availability of other means to join case. Shahi v. Madden, 2010 VT 56, ¶ 10, 188 Vt. 142, 5 A.3d 869.

Here, intervenors did not move for intervention until May 2018, more than two years after the complaint was filed in April 2016. Based on the facts and circumstances of this case, we conclude that intervenors have failed to carry their burden to show that they sought intervention in a timely manner. We therefore affirm.