Explain the process you go through when hearing cases.

Cases are assigned to us a few weeks before the arguments. We’ve got the briefs and do independent research prior to argument. Before oral argument my clerk and I have read all the cases – I’ve read all of the cases – but she and I have read all the cases assigned to our chambers. And she and I will sit down and go through each issue that’s presented and try to lock down my position on the law on that issue – so we have discussions, we exchange notes, etc. and then we hear oral argument.

After we’ve heard oral argument we’ll come back to this conference room and discuss it with the other justices. Whoever’s had the case assigned to their chambers will start the discussion and explain how they think the case should be decided and why; and then we go around, by seniority, and everybody gives their opinion. That’s when we do the discussion of the case.  So, the first conference after oral argument is the best opportunity to find out where the other justices are – what their position is vis a vis, how you think the case should come out and then, try to accommodate it if you can or understand that there will be a dissent.  There may be people who are not quite on board yet with the way I think a decision should come out and they’ll wait to see what my first draft looks like when I send it out into circulation. After conference then the dialog goes on in writing

Then I go back to chambers and talk to the clerk again – it’s exactly like we decided it or we need to go heavier on this point or we don’t have to address that point, nobody wants to go there… and then, her job is to craft a first draft or I’ll craft a first draft and we’ll trade – back and forth for editing purposes. I’d have to say, at least for myself, and I think this has to be true of the other justices here: the great amount of work goes into the post-argument process because that involves greater care of writing the decisions, doing further research, and so on.

Source:  Vermont Woman, October 2008

SCOVT reverses denial of Rule 60(b) motion after case dismissed for failure of plaintiff’s lawyer to attend status conference.

Ying v. Heide, 2013 VT 81 (13-Sep-2013)

ROBINSON, J.   The question in this case is whether the trial court’s dismissal of plaintiff’s eviction action on account of her lawyer’s failure to attend a scheduled status conference can withstand a motion to set aside the judgment pursuant to Vermont Rule of Civil Procedure 60(b) on the facts of this case.  We conclude that it cannot and reverse.

 Rule 60(b)(1) allows the court to relieve a party of a final judgment order for “mistake, inadvertence, surprise, or excusable neglect.”  The trial court has discretion in deciding a Rule 60(b) motion and we will affirm “unless the record indicates that such discretion was abused.”  Lyddy v. Lyddy, 173 Vt. 493, 497, 787 A.2d 506, 513 (2001) (mem.).  The question before us now is whether plaintiff has established the requisite “excusable neglect” to warrant reopening a final judgment.

In the context of a late filing, the U.S. Supreme Court has described “excusable neglect” as an equitable determination, “taking account of all relevant circumstances surrounding the party’s omission.”  Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).  The excusable neglect standard is intended to encompass acts of negligence, but does not reach “every instance of an inadvertent or negligent omission.”  Id. at 394.  This Court has incorporated the Pioneer factors to define excusable neglect for purposes of extending the appeal period under Vermont Rule of Appellate Procedure 4.  In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60, 838 A.2d 98

We acknowledge that, as the trial court concluded, plaintiff’s explanation for not appearing at the status conference was not compelling.  Plaintiff’s lawyer failed to properly calendar the hearing and instead relied on an online calendar that expressly excluded the court in which this case was pending.  This error is not the kind of “excusable neglect” that would warrant extension of a missed appeal deadline. 

Given the law’s preference for adjudication on the merits, we conclude that the trial court’s denial of plaintiff’s motion to set aside the judgment exceeded its discretion.    Plaintiff's counsel sought to remedy the situation relatively quickly and defendant would not have suffered significant prejudice through the reinstatement of plaintiff’s claims and defendant’s counterclaims within weeks of the court’s dismissal.  There is no suggestion here that plaintiff or her lawyer acted in bad faith.  There is no evidence that plaintiff herself, as opposed to her lawyer, was responsible for the failure.See Pioneer Inv. Servs., 507 U.S. at 395 (explaining that relevant factors in determining “excusable neglect” include danger of prejudice, length of delay, and good faith of party claiming excusable neglect).   Given these factors, we cannot conclude that the trial court acted within its discretion in declining to reopen the case for consideration on its merits.

 REIBER, C.J., dissenting.   Though plaintiff may have suffered as a result of her attorney’s deficient performance, calling into question the trial court’s necessary and reasonable exercise of discretion is not the appropriate response or remedy.  In my view, this Court ought to affirm the trial court’s decision to deny plaintiff’s motion for relief from judgment.    I am authorized to state that Justice Burgess joins this dissent.

Accrual of six-year statute of limitations applicable to childhood sexual abuse was issue of fact for jury.

Clarke v. Abate, 2013 VT 52 (09-Aug-2013)

REIBER, C.J.  In this civil action alleging sexual assault and battery and intentional or reckless infliction of emotional distress by a medical doctor during the course of his treatment of a high school female athlete, plaintiff appeals the superior court’s grant of summary judgment to defendant based on the six-year statute of limitations applicable to childhood sexual abuse. The court’s determination that the limitations period had run as a matter of law before plaintiff filed her lawsuit relied primarily on plaintiff’s statements to police and her deposition testimony concerning her awareness of defendant’s wrongful conduct at the time of the alleged assaults. We conclude that the court erred by determining the limitations accrual date as a matter of law rather than allowing the jury to weigh inferences from the factual record regarding plaintiff’s state of mind and knowledge during the relevant period of time. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.

The applicable statute of limitations, 12 V.S.A. § 522(a), states a civil action for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.

Plaintiff's treatment with defendant ended in August 2002 Plaintiff filed suit on June 4, 2009. The trial court granted summary judgment relying primarily on statements made by plaintiff to police in 2007 and her 2011 deposition testimony concerning her awareness of defendant's conduct at the time of the alleged assaults. The court concluded as a matter of law that plaintiff's cause of action began to accrue when she reached the age of majority because her own statements indicate that she knew or should have known of the assaultive nature of defendant's conduct at the time it occurred.

A court may determine the accrual-date issue only "when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue." Although plaintiff in a statement to investigators, indicated she "definitely" felt something was wrong during the examinations, she also made statements indicating that she was not sure if her concerns were valid and did not receive affirmation of the validity of those concerns from family members. Given plaintiff's at-times equivocating and conflicting statements to the authorities concerning her knowledge and awareness of any wrongful conduct on defendant's part, it was the jury's prerogative to make any inferences from those statements and determine at what point plaintiff knew or should have known that defendant's conduct was assaultive rather than medical in nature.

Given the imbalances of the roles between plaintiff and defendant, as well as the ambiguities and inconsistencies in the statements relied upon by the trial court with respect to the extent of plaintiff's knowledge and understanding of whether the purported treatment was in fact childhood sexual abuse, the trial court erred in dismissing plaintiff's suit as a matter of law.

Beneficiaries who successfully defended settlor’s capacity to execute trust not entitled to attorney’s fees.

Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 (06-Dec-2013)

BURGESS, J. Plaintiffs appeal from a judgment based on a jury verdict finding that the testator Phyllis Agan possessed the capacity and free will to execute a trust, leaving sizable bequests to defendants, various nonprofit organizations in the Town of Ludlow, Vermont. Defendants cross-appeal, claiming that the trial court erred in denying their requests for attorney’s fees and prejudgment interest. We affirm.

The motion for attorney’s fees had two bases. First, defendants relied on 14A V.S.A. § 1004, which provides: “In a judicial proceeding involving the administration of a trust, the probate division of the superior court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” Second, defendants argued that the court should invoke its inherent equitable power to award attorney’s fees in the interests of justice. See In re Gadhue, 149 Vt. 322, 327, 544 A.2d 1151, 1154 (1987) (noting the “historic powers of equity courts to award attorney’s fees as the needs of justice dictate”). The trial court observed that this was a contest between beneficiaries and that defendants were defending their interests in receiving the gifts and no other purpose related to the trust itself. 

Even assuming that “administration” of the estate could be construed to include a contest between beneficiaries over the testator’s capacity or free will in establishing the trust, the issue would remain whether “justice and equity” require an award of attorney’s fees under the statute—a question which in this case is largely indistinguishable from whether the court abused its discretion under its common-law authority in ruling that attorney’s fees were not required for “reasons of justice.” On this issue, we discern no basis to conclude that the court abused its discretion in determining that this dispute between beneficiaries under the trust implicated no considerations of justice or equity that warranted an award of attorney’s fees. See Knappmiller v. Bove, 2012 VT 38, ¶ 4, 191 Vt. 629, 48 A.3d 607 (mem.) (observing that awards for attorney’s fees are generally reviewed for abuse of discretion)

SCOVT affirms summary judgment for employer in discrimination case.

Brown v. State, 2013 VT 119 (13-Dec-2013)

BURGESS, J. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiff’s claim of employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State’s decisions not to promote him, and ultimately to terminate him from his position. We affirm.

Plaintiff adduced no evidence to show that his non-promotion was motivated by his membership in the Vermont National Guard or his possible deployment. He did not show that his qualifications were similar, equal, or superior to those of the individuals selected for regular positions at Southern State. Certain stray remarks by supervisors, coupled with the fact that none of the soon-to-deployed applicants was promoted, was not sufficient to raise a genuine factual dispute as to discriminatory motive. There is no evidence that these supervisors played any role in the employment decisions at issue. The mere fact of non-promotion does not support an inference of discrimination.

ROBINSON, J., dissenting. The summary judgment analysis in a case like this, in which the critical disputed fact is the employer’s motives for failing to promote, and then for subsequently terminating plaintiff, is particularly challenging. On the one hand, a plaintiff must have some evidence of discrimination other than an adverse action and membership in the protected class in order to establish a legally sufficient case. On the other hand, circumstantial evidence will often be a factor in these cases, for discrimination is seldom open or notorious. The ultimate assessment of the inferences to be drawn from the facts is for the jury rather than the court, unless reasonable minds could not differ on the question of knowledge. Given the record before us, I conclude that reasonable minds could well differ on the question of whether plaintiff’s anticipated deployment was a substantial factor in Southern State’s decisions to: (1) not promote plaintiff and (2) subsequently terminate plaintiff’s employment.

Appointed appellate counsel may not withdraw because appeal lacks merit. "Anders" procedure rejected.

In re S.C., Juvenile 2014 VT 7 (10-Jan-2014)

PER CURIAM.  In each of these appeals from a termination-of-parental-rights judgment, appointed counsel for appellant parent has moved to withdraw on the ground that continued representation violates the prohibition of Rule 3.1 of the Vermont Rules of Professional Conduct against bringing or defending a proceeding without a basis in law and fact for doing so that is not frivolous. We conclude that, absent client consent, a motion to withdraw by appointed appellate counsel in termination proceedings will generally not be granted, and therefore deny the motions.

The assertion of a claim that an attorney believes to be without merit or lacking any meaningful chance of success does not render an appeal “frivolous” or unethical. An argument is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. Even an utter lack of merit does not render an appeal by right wholly frivolous. 

A good faith argument may be predicated on whatever pertinent facts and controlling law are most favorable to the client and need not conclude with the lawyer’s assertion that his or her client is entitled to prevail. Rather than withdrawing or filing an Anders brief, appointed appellate counsel should present the contention succinctly in the brief in a way that will do the least harm to the client’s cause.

Note. Anders v. California, 386 US 738 (1967) permitted a court-appointed attorney to withdraw from the appeal of a criminal case because of a belief that the appeal was frivolous, but only upon filing a brief outlining the case and identifying potential grounds for appeal. See the various opinions discussing the "Anders" procedure in In re Bailey, 2009 VT 122.

SCOVT affirms ruling that finds unpersuasive State’s blood alcohol relation-back testimony.

State v. Nugent, 2014 VT 4 (10-Jan-2014)

REIBER, C.J. The State of Vermont appeals from the trial court’s grant of defendant’s motion for judgment as a matter of law on his civil driver’s license suspension. The trial court held that the State did not prove by a preponderance of the evidence that defendant’s blood alcohol concentration (BAC) was 0.08 or above at the time he operated a motor vehicle. The court found the State expert’s relation-back calculation to be unreliable because her assumed alcohol elimination rate of 0.015 percent per hour was speculative. We affirm the trial court’s decision.

Because the police tested defendant’s BAC more than two hours after the time of operation, the State was required to prove through relation-back evidence that defendant’s BAC was over the legal limit while he was driving. On cross-examination, defendant questioned the State expert’s assumption that the alcohol elimination rate was 0.015 percent per hour, on the grounds that elimination rates vary between individuals and the expert could only speculate as to defendant’s elimination rate. The expert conceded that the elimination rate varies by individual and that she had no scientifically principled way of distinguishing between her assumed elimination rate and different elimination rates offered by other experts in the field.

The trial court ruled the opinion was admissible but was of insufficient weight for the court to establish BAC at time of operation. This finding is reviewed for clear error, as the trier-of-fact is in the best position to determine the weight and sufficiency of the evidence presented. The trial court’s conclusion was supported by the expert’s testimony, in which she offered no credible reason why her assumed elimination rate was reliable as applied to defendant, nor did she testify as to the likelihood that defendant’s BAC was below 0.08 while driving. The trial court’s reliability finding was not error, much less clear error.

Police not liable to victim for failure to prevent crime.

Baptie v. Bruno, 2013 VT 117(06-Dec-2013)

BURGESS, J. Plaintiffs administrators of the estate of their son, appeal summary judgment in favor of defendant, a former police officer, dismissing their lawsuit alleging the officer was liable for the death of their son as the result of his negligent investigation of their complaint about harassing phone calls against a man who murdered their son four days after they made the complaint. We hold defendant is entitled to qualified official immunity from plaintiffs’ lawsuit and that, in any event, plaintiffs cannot prove all of the elements of their negligence or intentional infliction of emotional distress (IIED) claims. Accordingly, we affirm the superior court’s grant of summary judgment in defendant’s favor.

Because plaintiffs cannot show either that defendant’s conduct in responding to their complaint was ministerial rather than discretionary in nature or that defendant acted in bad faith or violated clearly established law, defendant is immune from their lawsuit claiming that his inadequate investigation of their complaint made him liable for their son’s murder.

In any event, plaintiffs cannot prove that defendant owed them a duty to prevent the murder of their son The general rule is that “crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for [tort] liability.” Edson v. Barre Supervisory Union # 61, 2007 VT 62, ¶ 13, 182 Vt. 157, 933 A.2d 200. Defendants in civil tort actions may be held responsible for protecting a person against the criminal act of another “only where the defendant had special knowledge or notice upon which to impose a duty to anticipate the wrongful act.” Id.; compare Sabia v. State, 164 Vt. 293, 305-06, 669 A.2d 1187, 1195-96 (1995) (concluding that child protection agency had duty to protect two sisters from known abuser by virtue of its awareness of abuse and its statutory duty to protect abused children) with Estate of Sumner v. Dep’t of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (concluding that child protection agency had no duty to anticipate sexual assault and murder perpetrated by child under its supervision).

Plaintiffs cannot prove that defendant had a special relationship or notice upon which to base his liability for Bruno’s murder of their son. Defendant initially told plaintiffs that he would investigate their complaint, and then later told them that he would attempt to locate Bruno and charge him with the misdemeanor crime of harassment by telephone. Defendant neither promised, nor had a duty, to conduct his investigation in a particular manner. Defendant never assured or even suggested to plaintiffs that he would seek to have Bruno incarcerated in the near future. In short, viewing the facts most favorably to plaintiffs, plaintiffs cannot show that defendant owed them a special duty to prevent Bruno’s murder of their son.

An IIED claim can be sustained only where the plaintiff demonstrates ‘outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.even if defendant’s investigation proved to be inadequate or incomplete, he made some effort to locate and charge Bruno for what he reasonably believed to be a misdemeanor crime. This conduct cannot be considered outrageous in the extreme, and the superior court correctly granted defendant summary judgment on the IIED claim.

Duty to defend under indemnification contract depends on factual allegations of underlying complaint.

 State v. Prison Health Services, Inc. 2013 VT 119  (20-Dec-2013)

SKOGLUND, J. The State appeals a declaratory judgment ruling that Prison Health Services, Inc. (PHS) is not contractually obligated to defend the State against certain claims brought by the estate of decedent, who died while in the custody of the Department of Corrections. The trial court granted PHS judgment on the pleadings sua sponte, finding that "[t]here are no allegations of wrongdoing by PHS personnel that form the basis for a claim, and thus the duty to defend is not triggered." We reverse, and conclude that PHS has a duty to defend.

In contractual duty-to-defend cases, an indemnitor's obligation to defend should be determined at the beginning of the case based on the pleadings. Insurance law principles, which would resolve all contractual ambiguities in favor of the insured, do not completely apply in cases involving a noninsurance contractual indemnity relationship. Rather, we interpret the indemnification provision of the contract to give effect to the intent of the parties as it is expressed in their writing.

The contract’s indemnification provision stated that PHS would “indemnify, defend and hold harmless the State and its officers and employees from liability and any claims, suits, judgments, and damages which arise as a result of [PHS]’s acts and/or omissions in the performance of services under this contract.” The critical question is whether the estate’s allegations against the State arise from PHS’s performance of the contract.

For a judgment on the pleadings, we assume all factual allegations in the nonmoving party's pleadings are true.  Goodby v. Vetpharm, Inc., 2009 VT 52, ¶ 3, 186 Vt. 63, 974 A.2d 1269.  In deciding whether the estate’s allegations against the State arise from PHS’s performance of the contract we focus on the “factual allegations in [the complaint] and not on the legal theories asserted.” TBH v. Meyer, 168 Vt. 149, 153, 716 A.2d 31, 35 (1998). Taking these factual allegations as true,  we conclude that the estate’s grievances arise from negligent conduct by both the State and PHS in its performance of contracted services. The estate’s claims contain allegations that arise as a result of PHS’s provision of medical services to inmates, and it must therefore defend the State against these claims.

Appeals. Preserving error. Defense failed to preserve argument that punitive damages may not be awarded against wrongdoer’s estate.

 Carpentier v.Tuthill, 2013 VT 91, ¶ 19 n.*

Defendant suggests in its brief that no punitive damages were appropriate because Oakes is dead, and thus, the award could have no deterrent effect.  Defendant did not argue below that, as a matter of law, the jury could not award punitive damages, and we consider these arguments waived. See Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 27, 187 Vt. 309, 992 A.2d 1042 (holding that party waived argument that no punitive damages should have been awarded by failing to raise issue at trial or in motion for directed verdict at close of case). Thus, we do not reach the question of whether punitive damages can ever be rightfully awarded against an estate.

A motion to set aside a default must establish a meritorious defense “with particularity.”

LaFrance Architect v. Point Five Development South Burlington, LLC , 2013 VT 115 (20-Dec-2013)

REIBER, C.J. Defendant appeals the trial court’s refusal to vacate a default judgment against defendant. In light of its conclusion that an internal law office failure like that claimed here did not amount to excusable neglect, the trial court declined to exercise its discretion to consider defendant’s claimed defenses. We hold that the trial court improperly declined to consider the strength of defendant’s proffered defenses to the underlying action in reviewing defendant’s motion to vacate the default judgment, but that defendant’s Rule 60(b) motion did not establish a prima facie case with sufficient particularity to support a meritorious defense. We therefore affirm the trial court.

A trial court should consider the following factors when conducting the Rule 60(b) analysis: whether the failure to answer was the result of mistake or inadvertence, whether the neglect was excusable under the circumstances, and whether the defendant has demonstrated any good or meritorious defense to the plaintiff’s claims.” With respect to the “excusable neglect” factor, courts should be particularly circumspect “when the initial fault, at least, appears to be that of a defendant’s attorney. Concerning the “meritorious defenses” factor, the trial court should give substantial weight to a meritorious defense when determining whether to vacate a default judgment.

One of the “meritorious defenses” defendant raised is a counterclaim based on alleged deficiencies in the services provided by plaintiff. Given that compulsory counterclaims are conclusively adjudicated by a default judgment, we conclude that a counterclaim arising from the same transaction as the underlying complaint, can constitute a “meritorious defense.” Defendant’s counterclaim satisfies the requirements of notice pleading under Rule 8(a), but is not detailed enough to satisfy the more exacting standards of a motion to set aside a judgment under Rule 60(b). We conclude that defendant’s Rule 60(b) motion did not plead a prima facie case of a meritorious defense arising from plaintiff’s allegedly deficient performance with sufficient particularity to warrant remand for the trial court’s consideration.

Defendant also points to the mandatory mediation and arbitration clauses in the contract between the parties as a defense to the trial court’s judgment. Given defendant’s delay in asserting its arbitration rights, however, we hold that defendant’s conduct amounted to an implicit waiver and thus does not constitute a meritorious defense for purposes of Rule 60(b).

Therefore, it is unnecessary to remand the case to the trial court, since defendant has no meritorious defenses and cannot prevail under Rule 60(b) as a matter of law.

ROBINSON, J., concurring in part, dissenting in part. I respectfully dissent from that part of the majority’s opinion relating to the question of whether we should remand this case to the trial court for consideration of the requisite factors, including the prejudice to plaintiff of setting aside the default judgment, the nature of defendant’s neglect, and the strength of defendant’s defense based on the mandatory mediation and arbitration clauses in the contract between the parties.

How cited

Consumer Protection Act does not apply to sale of a business because Act requires a transaction “in commerce,” i.e. the consumer marketplace. Restitution of consideration is an alternate to lost profits as measure of damage for breach of noncompetition agreement

Foti Fuels, Inc. v. Kurrle Corporation, 2013 VT 111 (13-Dec-2013)

REIBER, C.J. Plaintiff Robert Foti sold most of his fuels business to defendant James Kurrle and agreed to sell gasoline to defendant through his retained wholesale distributorship. When their business relationship soured after several years, plaintiff sued defendant for one month’s nonpayment of gasoline and other claims. Defendant counterclaimed for breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Vermont Consumer Fraud Act (CFA), all arising from his original purchase of plaintiff’s business. Defendant now appeals the court’s judgments as a matter of law on these counterclaims in favor of plaintiff. The trial court held that there was no sufficient evidentiary basis for the jury to find that the transaction occurred “in commerce,” as defined by the CFA. It also held that failure to establish lost profits is fatal to a breach of contract claim based upon an alleged violation of a non-competition agreement. We affirm in part and reverse in part.

We conclude, as the trial court did, that the CFA does not apply to this transaction as a matter of law. The CFA does not define “in commerce,” and our case law interpreting the term is limited. We hold that the “in commerce” requirement narrows the CFA’s application to prohibit only unfair or deceptive acts or practices that occur in the consumer marketplace. To be considered “in commerce,” the transaction must take place “in the context of [an] ongoing business in which the defendant holds himself out to the public.” Further, the practice must have a potential harmful effect on the consuming public, and thus constitute a breach of a duty owed to consumers in general. In purely private transactions, remedies available through well-established principles of contract, tort, and property law are adequate to redress wrongs.

Here, the parties’ transaction does not constitute a transaction “in commerce” for CFA purposes because it did not occur in the consumer marketplace. First, plaintiff held his offer out to defendant only, not to the public at large. Second, the transaction did not involve products, goods or services purchased or sold for general consumption, as those terms are generally understood, but rather the sale of an entire business from one party to another.

Consequential damages are merely one way to determine a remedy in a breach of contract action. In this case, we agree with the trial court that defendant failed to establish consequential damages with the type of specificity that would permit a fact finder to make an appropriate and rational award. Restitution may be the most appropriate where consequential damages, such as lost profits, are speculative and thus difficult to establish. We hold that defendant is entitled to claim the return of the consideration as an alternative form of contractual relief if the jury concludes that plaintiff breached the terms of the non-competition agreement. In light of the potential remedy of the consideration refund, we hold that the trial court erred in granting plaintiff’s motion for judgment as a matter of law on defendant’s claims arising from the non-competition agreement and therefore reverse and remand on this issue.

Affirmed as to defendant’s counterclaim under the Vermont Consumer Fraud Act; reversed and remanded with respect to the trial court’s grant of judgment as a matter of law on defendant’s counterclaims for breach of contract and breach of the covenant of good faith and fair dealing.