Preservation of error: summary judgment issues must be renewed at trial.

Stratton Corp. v. Englebert Construction, Inc., 2015 VT 69 [Filed May 1, 2015]

This case stems from a condominium construction project in Stratton, Vermont. Owner and developer, Stratton Corporation and Intrawest Stratton Development Corporation (collectively "developer"), sued the project's general contractor Engelberth Construction, Inc., who in turn filed a third-party claim against subcontractor Evergreen Roofing Company. A jury found  that Evergreen Roofing breached its subcontract with Engelberth Construction, and that Evergreen Roofing was obligated to indemnify Engelberth Construction. On appeal, Evergreen Roofing  argues that the court erred in denying a pretrial motion for summary judgment filed by Engelberth Construction on various issues, including  whether proof of non-insurance or lack of availability of insurance coverage was a prerequisite to developer's recovery against Engelberth. (the CIP issue).We conclude that Evergreen Roofing failed to preserve its argument, and we therefore affirm.

The  issues raised by Evergreen Roofing are not properly before us. First, a party generally cannot appeal from the pretrial denial of a motion for summary judgment. This is because "[o]nce 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."  Evergreen Roofing provides no legal authority to support any exception to this general rule.

Second,  Evergreen Roofing  did not raise the CIP issue at trial. It did not object to the exclusion of CIP evidence; it did not object to the jury instructions; and it did not move for judgment as a matter of law. Evergreen Roofing's failure to properly raise the CIP issue at trial precludes our review of this issue on appeal.