Procedure. Judgment terminates right under V.R.C.P. 15(a) to amend complaint to add new theory.

Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, ¶¶ 26-27 [filed October 16, 2015]

DOOLEY, J. Plaintiff appeals a decision granting defendant’s motion to dismiss plaintiff’s claims of fraud and breach of fiduciary duty. We affirm

On appeal plaintiff argues as am alternative that his complaint states a cause of action for prima facie tort. Under the law of several states, a harm intentionally inflicted on another without justification is prima facie actionable. See, Restatement (Second) of Torts § 870 (“One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor’s conduct does not come within a traditional category of tort liability.”).

Although other state courts have adopted prima facie tort liability under § 870, this Court has yet to do so. See Fromson v. State, 2004 VT 13 29, ¶ 20, 176 Vt. 395, 848 A.2d 344 (observing that this Court has never decided whether to recognize prima facie tort liability). Plaintiff argues that we should adopt it here.

Plaintiff never argued below that defendants could be found liable on a theory of prima facie tort. He therefore waived it on appeal. Plaintiff , however, urges us to remand to allow him to add a new count to his complaint alleging prima facie tort pursuant to V.R.C.P. 15(a).

We held in Desrochers v. Perrault, 148 Vt. 491, 494, 535 A.2d 334, 336 (1987), that Rule 15(a) did not allow “a post-judgment amendment which brings in an entirely extrinsic theory.” More recently, in Northern Security Ins. Co. v. Mitec Electronics, 2008 VT 96, ¶ 39, 184 Vt. 303, 965 A.2d 447, we held that the right of plaintiff “to amend the complaint under Rule 15 terminated when judgment was entered.”

Plaintiff’s invocation of Rule 15(a) comes too late in the process for us to give him the relief he seeks.