Statute of limitations bars claim for roof defects as a matter of law, even if claimant did not yet understand the full extent of the problem, where undisputed facts show claimant had notice that something was wrong with the roof more than six years prior to suit.

Abajian v.TruexCullins, Inc., 2017 VT 74 [filed 8/25/2017]


EATON, J. Plaintiffs had a new roof installed on their home in 2001. In 2014, after the roof turned out to be defective, plaintiffs sued the architecture and construction firms that designed and installed the roof for negligence and breach of contract. The trial court granted summary judgment to defendants on the ground that the action was barred by the statute of limitations. The court ruled no reasonable jury could find that plaintiffs “were not on inquiry notice of some roof defect by 2005.” We now affirm.

A civil action must “be commenced within six years after the cause of action accrues.” 12 V.S.A. § 511. A cause of action accrues upon discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery.

Plaintiffs contend that the issue of when their claims accrued was a question of fact that was for the jury rather than the trial court to decide, and that a jury could find there was nothing to put them on inquiry notice regarding the condition of the roof until they experienced major leaks during the winter of 2012-13.

However, the question here is not when plaintiffs discovered the true nature of the roof defect, but when sufficient facts existed that would have led a reasonable person to begin the investigation that would lead to the discovery. Courts have not hesitated to grant summary judgment where the undisputed facts show that plaintiffs were aware of sufficient facts to put them on inquiry notice of a roof defect, even if they did not yet understand the full extent of the problem.

We agree with the trial court that, by 2005, plaintiffs were aware of facts sufficient to lead any reasonable homeowner to investigate the condition of the roof. At that point, they had already experienced a major, unprecedented leak that was severe enough for them to file an insurance claim. Rust spots had begun to appear. The ice damming problem, which the metal roof was supposed to mitigate, was worse than ever. Plaintiffs themselves stated that by 2005, the roof was not living up to their expectations and was “failing”.

There is no genuine dispute regarding these facts, which were sufficient to place a reasonable person on notice that something was wrong with the roof. These facts were sufficient as a matter of law for plaintiffs’ claims against defendants to accrue at that time.

Affirmed.

Untimely appeal accepted under 4 V.S.A. § 2(b) as “necessary to the furtherance of justice,” due to failure of court to assign counsel.

In re M.T. , 2017 VT 104 ¶ 3   [filed November 3, 2017]

Parents arguments on appeal attack the court’s decision denying their July 12 Rule 60(b) motions for relief from judgment. In fact, parents did not appeal the denial of the Rule 60(b) motion; rather, parents filed a subsequent motion to reopen thirty days after the denial of the Rule 60(b) motion. The trial court dismissed this motion as untimely. See V.R.C.P. 59(e) (setting ten day deadline on filing motion to alter or amend). Because the second motion to reopen was untimely, it could not toll the appeal period. V.R.A.P. 4(b) (providing that timely post-judgment motions toll appeal period); see In re Beach Props., 2015 VT 130, ¶ 8, 200 Vt. 630, 133 A.3d 854 (explaining that untimely motion to reconsider did not toll appeal period and therefore Court lacked jurisdiction over appeal).

In very rare cases with analogous circumstances, we have exercised our authority to issue “orders that may be necessary to the furtherance of justice” under 4 V.S.A. § 2(b)[1] “to protect or create a right of appeal that would otherwise have been lost.” In re Babson, 2014 VT 105, ¶ 3, 197 Vt. 535, 107 A.3d 339 (reinstating petitioner’s appeal where a petitioner lost his ability to timely appeal due to the ineffective assistance of counsel, and identifying other cases in which this Court has done so); see also In re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (invoking Court’s authority under 4 V.S.A. § 2(b) to review mother’s untimely appeal of judgment terminating her parental rights where mother asked her counsel to appeal and counsel missed the appeal deadline)

Parents’ procedural failings following the court’s denial of their request for counsel were shaped in substantial part by the court’s error in declining to assign them counsel. Competent counsel would have preserved parents’ appeal rights. Given the unique facts of this case, we assert our jurisdiction to review the June 12, 2017 denial of parents’ February 9 Rule 60(b) motion.


SCOVT NOTE: 4 VSA § 2, Supreme Court established; jurisdiction, provides:

(a) The Supreme Court shall have exclusive jurisdiction of appeals from judgments, rulings, and orders of the Superior Court, administrative agencies, boards, commissions, and officers unless otherwise provided by law.

(b) The Supreme Court shall have original jurisdiction, concurrent with the Superior Court, of proceedings in certiorari, mandamus, prohibition and quo warranto and shall have jurisdiction to issue all writs, processes, and orders that may be necessary to the furtherance of justice and the regular execution of the law.

(Amended 1971, No. 185 (Adj. Sess.), § 5, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 2.)

Town entitled to summary judgment that ancient road is a public road, even though there is no certificate of opening.

Town of Granville  v. Loprete, 2017 VT 101 [filed October 20, 2017)

SKOGLUND, J. Defendant appeals from the court’s summary judgment decision in plaintiffs’ favor in this ancient road case. He argues that the undisputed facts do not support the court’s conclusion that Sabin Homestead Road is an existing town highway and public road. We affirm.

The law in effect at the time of the road’s creation “provided three legal requirements for the creation of a road: (1) an official survey to be recorded in the town clerk’s office; (2) a formal act by the selectboard; and (3) a certificate of opening.” Kirkland v. Kolodziej, 2015 VT 90, ¶ 19, 199 Vt. 606, 128 A.3d 407 (citing Laws of Vermont, 1824) (additional citation omitted).

The court first denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The court later ruled that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town.

We affirm the trial court’s decision on alternate grounds.

Section 717(a) now expressly provides that “[t]he lack of a certificate of completion of a highway shall not alone constitute conclusive evidence that a highway is not public.” Section 717(a) makes clear that the absence of a certificate-of- completion is not fatal to the Town’s claim. Pursuant to 19 V.S.A. § 717(a), the Town was not required to provide a certificate-of-opening, nor to prove that it once existed and cannot now be located. We conclude that the Town met its burden of proof, and that it was entitled to summary judgment in its favor.

Taxpayers have standing to challenge public management of federal funds used to repair a church; but preliminary injunction vacated because success unlikely on merits of claim that Compelled Support Clause of the Vermont Constitution is violated by public funding for physical repairs to a place of worship used also for secular purposes.

Taylor v. Town of Cabot, 2017 VT 92 [filed 10/6/2017]


ROBINSON, J. This case involves a challenge under the Compelled Support Clause of the Vermont Constitution to the Town of Cabot’s grant of federally derived but municipally managed funds for the purpose of repairs to a historic church. On interlocutory appeal, we consider whether plaintiffs have standing to pursue their claims and whether the trial court erred in issuing a preliminary injunction prohibiting the Town from paying the grant funds pending further order of the court. We conclude that plaintiffs do have municipal taxpayer standing, but vacate the trial court’s award of a preliminary injunction and remand for further proceedings to resolve the case on the merits.

Municipal taxpayer standing under our law encompasses claims that municipal assets have been improperly wasted, and the record in this case supports the conclusion that the grant funds here are municipal assets notwithstanding the fact that the funds originated from the U.S. Treasury. The Town has held part or all of the former federal grant funds with no requirement for accounting to HUD regarding the Town's use of the funds, and subject only to the limitation that the Town use the funds for a broad range of purposes that may supplant municipal general fund expenditures. Under these circumstances, the funds are municipal assets for the purpose of municipal taxpayer standing.

The trial court here rightly identified the main factors guiding its review under Vermont law: (1) the threat of irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of success on the merits; and (4) the public interest. In re J.G., 160 Vt. 250, 255 n.2, 627 A.2d 362, 365 n.2 (1993). We do not adopt the federal test of "sufficiently serious questions as to the merits plus a balance of hardships that tips decidedly in their favor." While we affirm the preliminary injunction standard applied by the trial court, we conclude that the trial court erred in awarding the preliminary injunction because it overestimated the plaintiffs' likelihood of success on the merits, and erred in concluding that plaintiffs would suffer irreparable injury in the absence of an injunction.

Our analysis is framed by the Compelled Support Clause of Chapter I, Article Three of the Vermont Constitution and our caselaw thereunder, limitations arising from the Free Exercise Clause of the First Amendment to the U.S. Constitution, and the record in this case. In light of these considerations, plaintiffs face strong headwinds in arguing that the Compelled Support Clause embodies a categorical prohibition against any public funding for physical repairs to a place of worship, and plaintiffs have not yet presented sufficient evidence to demonstrate a high likelihood of success on a narrower claim.

The focus of the Compelled Support Clause is the support for "worship" itself. The fact that the recipient of government support is a religious organization is not itself determinative under the Compelled Support Clause; whether the funds are used to support religious worship is the critical question. The grant funds in this case were undisputedly allocated for the purpose of maintenance and repairs to a building that serves as a place of worship, is available for many nonsectarian community events and gatherings, and is an important and historic building in the town. Where funding is available on a neutral and non-discriminatory basis to a broad and diverse group of potential recipients in order to promote a squarely secular goal of the broader community, there is no indication that the funds are intended to or do advantage religious organizations or activity, and the funds are used for structural repairs rather than, for example, erecting religious symbols, we cannot conclude that such funds support worship within the meaning of Article Three.

We affirm the trial court’s denial of the Town’s motion to dismiss on standing grounds, and vacate the preliminary injunction in this case. Affirmed in part, vacated in part, and remanded for further proceedings.

Legal malpractice. Causation proved as a matter of law. Attorney's fees not recoverable.

Sachs v. Downs Rachlin Martin PLLC  . 2017 VT 100 [filed 10/20/2017]

SKOGLUND, J. After a bench trial, the trial court concluded that defendant attorney’s failure to adequately inform plaintiff of the risks of delay in filing a parentage action “negligently fell short of the standard of reasonably competent legal representation.”The trial court also determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant’s negligent advice. On appeal, plaintiff challenges the court’s legal conclusions and contends that the court’s factual findings established both causation and damages. We agree, and so reverse.

Following a bench trial, the court determined that plaintiff failed to prove the negligent representation was a “cause-in-fact” of plaintiff’s injury and that the evidence was “equivocal” as to whether plaintiff would have decided to file immediately had she been aware of the risk. It also found insufficient evidence for nonspeculative monetary damages.

Based on factual findings made by the trial court, we conclude that plaintiff met her burden to prove that, but for defendant’s negligence advice, she would not have delayed filing. To be clear, we do not hold that the trial court’s factual findings were clearly erroneous. We do not disagree with the sufficiency of the court’s factual findings in any respect. Rather, we conclude that those findings lead inescapably to the legal conclusion that plaintiff established causation by a preponderance of the evidence. Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208 (2007) (noting causation “may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way”)

More importantly, the alternate theory of causation advanced by defendant and apparently adopted by the trial court is not the standard for determining causation-in-fact. The trial court concluded that “[p]laintiff has not demonstrated that she likely would have made any different decision, even if properly advised of the risks of losing support.” This was not a correct statement of the law. Plaintiff merely needed to prove by a preponderance of the evidence that but for defendant’s negligence, plaintiff would not have suffered harm. Id. That is a standard plaintiff satisfied here. We remand for the court to calculate the damages.

In addition to damages, plaintiff seeks attorney’s fees she spent pursuing her malpractice action against defendant. We conclude that the American Rule prevails in this case, and therefore, each party bears its own attorney’s fees.

Reversed and remanded for calculation of damages.

CARROLL, J., dissenting. I agree with the majority that the trial court did not use the correct legal standard for causation. However, the court applied a standard more deferential to plaintiff and the factual findings made by the trial court support the conclusion that plaintiff failed to prove by a preponderance of the evidence that she would have filed her parentage complaint sooner if she had been given accurate advice concerning child support.

When defendant informed plaintiff that there were important strategic advantages in remaining out of court for at least a year and that threats to contest custody are sometimes made as negotiating ploys to limit child support, plaintiff felt that this was a “terrifying prospect.” Plaintiff also testified that a delay in filing would allow her to “enjoy the time with [her] daughter and bond with her and have that time together without contentious litigation at the forefront of it all.” She described this as a “win/win” situation. The record supports a conclusion that plaintiff failed to demonstrate that “but for” the erroneous advice concerning child support, she would have filed her parentage complaint sooner. For this reason, I respectfully dissent. I am authorized to state that Judge Harris joins this dissent.

Vermont Constitutional law. Employee cannot rely on Article 4 to create a property interest in claimed employment rights because employee has no state law right to overtime wages.

 Flint v. Department of Labor,  2017 VT 89 [filed 10/06/2017]

A former employee of the Vermont Department of Labor appeals from a judgment on the pleadings denying his suit against the Department seeking unpaid overtime pay. Employee argues that he is entitled to overtime pay for hours worked in excess of forty hours per and that that state employees have a private right of action to enforce those claimed rights through Article 4 of the Vermont Constitution. Vt. Const. ch. I, art. 4. We affirm.

Chapter I, Article 4 of the Vermont Constitution provides: 

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; comformably to the laws.

Vt. Const. Ch. I, Art 4

 We have held that Article 4 is “the equivalent to the federal Due Process Clause.” Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). However, we have also held that Article 4 “does not create substantive rights,” but rather “ensure[s] access to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).

Article 4 provides a remedy only if employee can show that he has a pre-existing property interest in those employment rights. See Quesnel, 167 Vt. at 258, 706 A.2d at 439 (“There being no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s death, plaintiffs have not been denied due process of law or their rights under Article 4.”); see also Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 10, 199 Vt. 488, 125 A.3d 882 (“To show a  violation of procedural due process, an individual must (1) identify a protected property right, (2) show that the state or a state actor has deprived the individual of that right[,] and (3) show that the deprivation was effected without due process.”).

Employee asserts that those pre-existing property rights have a statutory basis—that they come from § 384(b)(7). But § 384(b)(7) explicitly excludes state employees from its protections because state employees’ minimum wage and overtime rights are already covered by FLSA.

Employee therefore has no state law right to overtime wages..

SCOVT NOTE. Compare Nelson v. Town of St. Johnsbury, 2015 Vt. 5, where the Court held a town manager who alleged wrongful termination was entitled to procedural due process under Article 4 and that Article 4 is self executing.

That Article 4 protects only recourse to the judicial process and does not create substantive rights see also Gallipo v. City of Rutland, 2005 VT 83; USGenNew England, Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927; Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989).

That access to courts is not absolute see State v. de Macedo Soares, 2011 VT 56 (requiring litigant to incur costs for filing fees and a transcript does not violate Article 4 ); Handverger v. City of Winooski, 2011 VT 130. ¶ 13 (Article 4 does not provide relief from explicit provisions of a city charter precluding appeal from termination of employment); Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572, 816 A.2d 490 (2002)( five-year statute of limitations in the Occupational Disease Act does not violate Article 4.).

Defamation. Statements made as preliminary steps to judicial or quasi-judicial proceedings are absolutely privileged.

Couture v. Trainer, 2017 VT 73 [filed August 25, 2017]

REIBER, C.J. Father appeals from a summary judgment order dismissing his defamation claims against mother and her sister (aunt). In his complaint, father alleged that mother and aunt coached daughter into saying "Daddy hit me" and submitted defamatory audio and video recordings of daughter's statements to his parole officer. Father also alleged that mother made false statements to his parole officer and in mother's petition for relief from abuse. The trial court ruled that these recordings and statements were absolutely privileged.. On appeal, father argues that the court erred in concluding that the recordings and statements are protected by absolute privilege and that they should instead be protected only by qualified privilege,. We affirm the superior court's entry of summary judgment.

If absolute privilege applies in the present case, summary judgment in favor of mother and aunt would be appropriate for father's defamation claim because one of the six elements of defamation is "lack of privilege in the publication." Lent v. Huntoon, 143 Vt. 539, 546-7, 470 A.2d 1162, 1168 (1983). at 546-47, 470 A.2d at 1168.

In Vermont, we have long recognized that statements within a judicial proceeding are absolutely privileged if they are relevant to the matter at hand. See Mower v. Watson, 11 Vt. 536, 540 (1839). Courts in many other states have concluded that absolute privilege is the appropriate level of protection for statements made in the preliminary stages of judicial and quasi-judicial proceedings. The Restatement supports the extension of absolute privilege to "communications preliminary to a proposed judicial proceeding" Restatement (Second) of Torts § 587 (1977) Public policy favors the extension of absolute privilege to statements and recordings made or produced in the context of parole violation reports and petitions for relief from abuse.

All the statements and recordings at issue in this case were made as preliminary steps to judicial or quasi-judicial proceedings. We hold that absolute privilege applies to the statements and recordings in this case.

SCOVT NOTE

In a careful opinion by Judge Redfiled in Mower v. Watson, 11 Vt. 536, 540 (1839) the Court concluded that an action against a witness for slander is maintainable if the false statements were irrelevant and malicious.

In 2006 The local federal court summarized Vermont law on this subject as follows: 

Defamatory statements published by parties in the course of judicial proceedings, however, are absolutely privileged, so long as they bear some relation to the proceedings. Letourneau v. Hickey, 807 A.2d 437, 441 (Vt. 2002). To sustain an action for slander based on statements arising out of a judicial proceeding, a plaintiff "must show that the words spoken were not pertinent to the matter then in progress, and that they were spoken maliciously and with a view to defame." Id. (quoting Mower v. Watson, 11 Vt. 536, 539-40 (Vt. 1839); see also Wilkinson v. Balsam, 885 F. Supp. 651, 659 (D. Vt. 1995) (holding that Vermont would likely adopt the Restatement principle that a witness is absolutely privileged to publish defamatory matter in communications preliminary to proposed judicial proceedings). Courts take a liberal approach to determining whether a statement is "pertinent" to the proceedings. Letourneau, 807 A.2d at 442 (the standard requires that a statement have only "some reasonable relation or reference to the subject of inquiry, or be one that may possibly be pertinent, with all doubts resolved in favor of the defendant") (quoting Prosser and Keeton on the Law of Torts § 114, at 817-18 (5th ed. 1984)).

Okemo Mountain, Inc. v. Sikorski, No. 1:93-CV-22, 2006 WL 335858, at *3 (D. Vt. Feb. 14, 2006)

Private nuisance law in Vermont does not encompass a cause of action for aesthetic harm alone.

Myrick v. Peck Electric Company, 2017 VT 4 (filed January 13, 2017)

EATON, J. For 120 years, Vermont has recognized that the unsightliness of a thing, without more, does not render it a nuisance under the law. See Woodstock Burying Ground Ass'n v. Hager, 68 Vt. 488, 35 A. 431 (1896). These consolidated cases require us to revisit whether Vermont law recognizes a cause of action for private nuisance based solely on aesthetic considerations. Appellants, a group of landowners from New Haven, appeal from the trial court's grant of summary judgment to defendants, two solar energy companies. The landowners filed suit after their neighbors leased property to the solar companies for the purpose of constructing commercial solar arrays. According to the landowners, the solar arrays constitute a private nuisance because they have negatively affected the surrounding area's rural aesthetic, causing properties in their vicinity to lose value. The trial court consolidated the cases and, noting that this Court's precedent in Hager bars nuisance actions based purely on aesthetics, granted summary judgment to the solar companies. We uphold Vermont's long-standing rule barring private nuisance actions based upon aesthetic disapproval alone. Accordingly, we affirm.

In Vermont, a private nuisance is defined as an "interference with the use and enjoyment of another's property" that is both "unreasonable and substantial." An unattractive sight—without more—is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen's ability to use and enjoy his or her neighboring land. A substantial interference requires some showing that a plaintiff has suffered harm to "the actual present use of land" or to "interests in having the present use of the land unimpaired by changes in its physical condition."

There is a difference between, on the one hand, a complaint that solar panels are casting reflections and thereby interfering with a neighbor's ability to sleep or watch television and, on the other hand, the landowners' complaint in this case—that the solar panels are unattractive. The former involves a potential interference with the use or enjoyment of property, while the latter does not.
Additionally, a complaint based solely on aesthetic disapproval cannot be measured using the unreasonableness standard that underpins nuisance law. This is because unlike traditional bases for nuisance claims—noise, light, vibration, odor—which can be quantified, the propriety of one neighbor's aesthetic preferences cannot be quantified because those preferences are inherently subjective. The judicial branch is ill-suited to be an arbiter of style or taste, and given the subjectivity of aesthetic preferences, they must remain the province of legislative decision-making in the form of zoning laws and, in specific instances, restrictive covenants that the courts are competent to interpret and apply.

Vermont's rule barring nuisance claims based solely on aesthetics is aligned with the majority rule in this country. We do not accept the landowners' argument that "[g]iven the importance of scenic resources in today's economy, and the development of our jurisprudence, Hager is no longer good law."

We reaffirm the rule from Hager that private nuisance law in Vermont does not encompass a cause of action for aesthetic harm alone.

Abuse of discretion to deny motion to amend complaint made after summary judgment motions, where issues were already implicit in the case

LeClair v. LeClair, 2017 VT 34, ¶¶ 27-35 (May 12, 2017)

DOOLEY, J. Plaintiff appeals from the trial court's grant of summary judgment to defendant in this negligence action. Plaintiff argues that the trial court abused its discretion by denying his motion to amend his complaint to add a new liability theory. We reverse and remand.

The original complaint, filed in August 2014, included a single negligence claim, in which he alleged that defendant owed a duty of reasonable care in the design, condition, and maintenance of his premises to those lawfully on his property; that the frost-covered roof presented an unreasonable risk of harm; and that defendant breached his duty of care by demanding that plaintiff work on the roof when it presented an unreasonable risk.  Defendant pled as affirmative defenses that there was no privity between plaintiff and defendant.

The parties agreed by stipulation to conclude all discovery by November 13, 2015, and to present any legal challenge to liability by motions for summary judgment to be filed on or before December 31, 2015. Defendant filed a motion for summary judgment on January 4, 2016.

Three days after filing his response to defendant's motion for summary judgment, plaintiff filed a motion to amend his complaint to add distinct counts entitled premises liability and negligence/safe workplace. The court denied plaintiff's motion to amend his complaint based on three factors: (1) the claim in the amendment was entirely new and based on different facts; (2) the plaintiff did not show good cause for the delayed timing of the amendment; and (3) the case had been pending for eighteen months, discovery had closed, and defendant had filed a motion for summary judgment.

We have summarized the limit on the trial court's discretion to deny a motion to amend: "When there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion." Bevins v. King, 143 Vt. 252, 254-55, 465 A.2d 282, 283 (1983). We conclude by this standard that  the trial court abused its discretion by denying plaintiff's motion to amend his complaint.

We recognize that we have previously affirmed a trial court's decision not to allow an amendment to pleadings after the other party has filed for summary judgment. Gauthier v. Keurig, 2015 VT 108, 200 Vt. 125, 129 A.3d 108.. But in Gauthier, the amendment's timing was not dispositive.

The absence of good cause for the delay is not a ground under Bevins to deny the motion to amend. The trial court did not find the proposed amendment to be "obviously frivolous" or "a dilatory maneuver in bad faith." Thus, the question comes down to whether granting the amendment would prejudice defendant.

There was no prejudice. Although the theory that defendant was plaintiff's employer was formally introduced in plaintiff's motion to amend, its genesis lies in defendant's answer, discovery, and motion for summary judgment. By the time the trial court considered the motion to amend, the issue of who was plaintiff's employer, and the effect of that determination, was squarely at issue in the case. It is clear from the summary judgment record that defendant did extensive discovery on the issue so the fact that discovery was closed when the court considered the motion to amend the complaint should not have weighed in favor of denying the motion.

Because plaintiff's claim in the motion to amend was addressed at length in defendant's own summary judgment motion, the court’s ruling on the motion to amend was governed by the policy in Rule 15(b) for claims "tried by express or implied consent of the parties." When a party, such as defendant here, impliedly consents to trial of issues not raised in the pleadings, Rule 15(b) states that "amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time." 

 We hold that when an issue enters a case during the summary judgment phase in part through the party later opposing its consideration, as here, the issue is effectively being tried based on the implied consent of the parties, and thus a contemporaneous motion to amend a pleading to include that issue should be freely granted.



SCOVT NOTE. It has long been settled that it is error to deny a motion to amend on the grounds that  the proposed complaint states a "new cause of action."  Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313, 455 A.2d 810, 815 (1982) The oft-cited test in Perkins  requires the trial court to consider the propriety of a motion to amend by examining four factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Id. 

Leclair's explicit rejection of “absence of good cause for delay” as a basis to deny amendment means Perkins' "undue delay" now has either no or limited meaning independent of the issues of bad faith and prejudice,  as stated in Bevins v. King, (“[W]hen there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion.")

Compare  Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6 (proper to deny an amendment that would require a continuance to accommodate additional discovery); Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1, 955 A.2d 1082 (denial of a motion under Rule 15(a) may be justified based upon a consideration of undue delay, among other factors).

A motion during trial is not necessarily too late. In Bevins v. King,the Court reversed the trial court's denial of a motion to amend an answer made on the day of trial. In Lillicrap v. Martin 156 Vt. 165, 591 A.2d 41(1991) the Court affirmed the trial court’s discretion in allowing an amended answer on the sixth day of trial.

With stronger force, the pendency of a summary judgment motion is no barrier to amendment. In Gauthier v. Keurig the appellant argued and LeClair implicitly recognizes "[t]here simply is no rule… that requests to amend must be denied when the opposing party has filed a summary judgment [motion]"  Leclair statesthat in Gauthier the amendment's timing was not dispositive.

(Yet more recent authority erroneously suggests in dictum that implied consent was key to LeClair, and is required whenever a motion to amend is made after summary judgment is pending. Bonk v Bonk, 2018 VT 15 ¶ 12.)  

Note that under Rule 15(b) a motion to amend to conform to the evidence may be made “at any time, even after judgment.” By case law, the right of to amend under Rule 15(a) terminates only when judgment is entered. See Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, ¶¶ 26-27.

Standards for denial of a Rule 15 motion to  amend pleadings

Under the rules of civil procedure, leave to amend the complaint "shall be freely given when justice so requires." V.R.C.P. 15(a); Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 43-44 (1989). The principal reasons underlying the liberal amendment policy are (1) to provide maximum opportunity for each claim to be decided on its merits rather than on a procedural technicality, (2) to give notice of the nature of the claim or defense, and (3) to enable a party to assert matters that were overlooked or unknown to him at an earlier stage in the proceedings. Id. (quoting  Bevins v. King, 143 Vt. 252, 255, 465 A.2d 282, 283 (1983)).

 In rare cases, denial of a motion under Rule 15(a) may be justified based upon a consideration of the following factors: "(1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party." Colby v. Umbrella, Inc., 2008 VT 20, ¶4, 184 Vt. 1, 955 A.2d 1082. (quoting Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313, 455 A.2d 810, 815 (1982).

This means that "[w]hen there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion." Bevins v. King, 143 Vt. 252, 254-55, 465 A.2d 282, 283 (1983)).

Other factors may not be considered.  For example, the Court recently held “the absence of good cause for the delay [] does not implement a requirement under Bevins and it is not a ground to deny the motion to amend.” LeClair v. LeClair, 2017 VT 34 ¶ 29

SCOVT gives full retroactive effect to a new rule in a case pending on appeal when the rule was announced.

Deutsche Bank National Trust Co, v.  Watts, 2017 VT 57 [ 6/23/2017]

DOOLEY, J. Defendant borrowers appeal the trial court’s summary judgment decision in favor of plaintiff lender in this mortgage foreclosure action. They assert that the trial court erred by finding that a dismissal with prejudice under Vermont Rule of Civil Procedure 41(b) is not an adjudication on the merits given preclusive effect in a foreclosure action. Lender argues in response that decisions of this Court that gave preclusive effect to the dismissal of foreclosure actions, made only after the trial court’s decision, should be applied only prospectively and not to this case. We reverse and dismiss lender’s action.

In Deutsche Bank v. Pinette, 2016 VT 71, 149 A.3d 479, this Court held that in mortgage foreclosure actions, the effect of an involuntary dismissal for failure to prosecute operates as an adjudication on the merits, barring a mortgagee’s subsequent foreclosure claims based on the same default. Id. ¶ 8. In Cenlar FSB v. Malenfant, 2016 VT 93, 151 A.3d 778 we held that foreclosing entities must give borrowers notice and an opportunity to reinstate loans prior to pursuing subsequent foreclosure actions based on new defaults. Malenfant, 2016 VT 93, ¶¶ 39-40. 

Lender asks us to rule under three-factor test laid out in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), that lender’s 2013 action was not precluded under the Pinette and Malenfant holdings because the underlying facts here transpired before we announced the holdings in those cases. But the Supreme Court limited the scope of the Chevron Oil test in Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993). The Court requires that a new rule of federal law be given full retroactive in all civil cases “still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id. at 97.

For a number of reasons, we decide to adopt the Harper rule. Because this case was on direct review when Pinette and Malenfant were decided, the rule of those cases applies. This action is barred by claim preclusion under Pinette and Malenfant because the foreclosure that lender seeks is based on the same default as the earlier action.

The court’s summary judgment decision is reversed and the matter is remanded for dismissal of plaintiff’s February 2013 complaint.

Plaintiff in premises liability case had sufficient evidence that defendant had a duty, despite the obvious danger, not to order plaintiff roofer to go onto a frosted roof.

LeClair v. LeClair, 2017 VT 34 (May 12, 2017)

DOOLEY, J.. Plaintiff appeals from the trial court's grant of summary judgment to defendant, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty. We reverse and remand.

Plaintiff fell from a second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries while working to help replace the roof on the building in which defendant has his office. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. Plaintiff contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether defendant breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof.

The critical issue in this case is whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them. Under § 343 of the Restatement (Second) of Torts a "possessor of land" may be liable "for physical harm caused to his invitees by a condition on the land if the possessor "should expect that they will not discover or realize the danger, or will fail to protect themselves against it." Section 343 should be read together with § 343A, which provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A

We recognize that some of our older cases concerning this area of the law have found no liability to an invitee when an injury was caused by a condition that was obvious or known to the invitee. These decisions arose when contributory negligence was a total defense to negligence liability.We concur with the holding of Wisdom v. TJX Companies, Inc., 410 F. Supp. 2d 336, 344 (D. Vt. 2006), that while "Vermont law has traditionally afforded a measure of protection to business owners whose invitees injure themselves by disregarding obvious dangers," this protection now bears more on the plaintiff's comparative negligence than on the defendant's duty of care.

We conclude that the facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, The key alleged fact in this case is that defendant, in a position of authority vis-à-vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. A jury could conclude that defendant breached a duty to protect plaintiff from encountering an open-and-obvious dangerous condition on his property by demanding that he encounter the dangerous condition. Accordingly, the superior court's grant of summary judgment to defendant on plaintiff's premises liability claim was inappropriate

ROBINSON, J., concurring in part and dissenting in part. I cannot join the majority's conclusion that defendant, as the property owner, can be held liable pursuant to the common law of premises liability for injuries resulting when a roofer climbed onto a frost-covered roof, stripped of shingles and covered with underlayment, thereby encountering dangers that were obvious and acknowledged by plaintiff before he climbed onto the roof. The majority's analysis suffers from two critical flaws: First, it misconstrues the scope of a landowner's common law duties concerning the condition of the premises in circumstances like this. Second, it rests on the assertion that defendant's familial relationship with plaintiff gave defendant "authority" over plaintiff such that defendant was legally accountable as landowner for plaintiff's choices.

I is difficult to imagine what the landowner's duty would be in this case. It clearly isn't a duty to warn, because there is no dispute that plaintiff was fully on notice of the danger. The reality is, this is not really a premises liability case at all. That is, plaintiff's claim is not really predicated on unreasonably dangerous conditions of the premises. Plaintiff's claim is that his grandfather goaded him into doing something dangerous, and he was injured as a result. This isn't a premises liability claim. It is not tied to defendant's status as landowner, or a breach of any duty with respect to the condition of the land.

In connection with the premises liability claim, there is no evidence that plaintiff was not competent, or had a special, cognizable vulnerability. Plaintiff was undisputedly a mature, twenty-seven-year-old man at the time of the accident. If there is a tort theory that supports liability when a defendant urges another competent adult to undertake dangerous activity, plaintiff has not pled or argued it.

I dissent from the majority's analysis of the premises liability claim. I would affirm that claim.


SCOVT NOTE: An example of where the Restatement says the possessor “should anticipate the harm despite such knowledge or obviousness” is where “the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Restatement (Second) of Torts § 343A, comment f. (1965) The current Restatement's view on “open and obvious" dangers is stated in Restatement (Third) of Torts: Phys. & Emot. Harm § 51 (2012), comment k.  Compare Menard v. Lavoie, 174 Vt. 479, 806 A.2d 1004, 1006 (2002) (mem.) (homeowners not negligent as a matter of law for spiral staircase fall because "[w]hatever dangers the stairs posed were obvious to any observer, and were well known by plaintiff”) with Ainsworth v. Chandler, 2014 VT 107  (holding a reasonable jury could conclude that either the danger on a stairway was not open and obvious or "that defendant should have foreseen the harm even if the danger was obvious.").

Attorneys do not owe a duty to non-client prospective beneficiaries of undrafted, unexecuted wills.

Strong v. Fitzpatrick, 2017 VT 35 [May 12, 2017]

REIBER, C.J. In this legal malpractice case, plaintiff claims that his deceased mother’s attorney failed to draft a will reflecting her alleged intent to leave plaintiff a greater share of real estate than that left to his siblings. Plaintiff appeals the trial court’s summary judgment decision for defendant, arguing that defendant owed him a duty of care as a prospective beneficiary of his mother’s estate. We disagree and therefore affirm,

Plaintiff argues that “if an attorney owes a duty of care to intended beneficiaries of estate planning legal services the duty must encompass an obligation to complete a contracted-for will, already begun, in a reasonable amount of time, or at least obligate the lawyer to inform the client that he will not complete the drafted will so that client can hire another lawyer to do the work.”

As this Court has previously observed, courts around the country have made exceptions to the general rule requiring attorney-client privity, often in the estate-planning or will-drafting context. See, e.g., Hedges, 2003 VT 63, ¶ 7 ("Many courts have held lawyers liable to nonclient plaintiffs for negligence where the plaintiff is an intended third-party beneficiary of the attorney-client relationship—in estate-planning and will-drafting cases for example."); Bovee, 174 Vt. at 488, 811 A.2d at 140 ("[A] number of courts have relaxed the privity rule in limited circumstances—most often in the estate-planning context—where it can be shown that the client's purpose in retaining the attorney was to directly benefit a third party.")

Plaintiff’s case is not about negligent drafting but rather about the absence of any drafting. We reject plaintiff’s request to extend an exception to the general rule to the circumstances of this case; imposing on attorneys a duty to prospective beneficiaries of undrafted, unexecuted wills would undermine the duty of loyalty that an attorney owes to his or her client and invite claims premised on speculation regarding the testator’s intent.

We hold that attorneys do not owe a duty to non-client prospective beneficiaries of undrafted, unexecuted wills and therefore do not recognize an exception here to the general rule requiring attorney-client privity to maintain a legal malpractice action.

Summary judgment: Divided Court holds "bald" affidavit creates no issue of fact.

H&E Equipment Services, Inc. v. Cassani Electric, Inc., 2017 VT 17 9

SKOGLUND, J. Defendant Nicholas Cassani appeals from the trial court’s order granting summary judgment to plaintiff H&E Equipment Services, Inc. on its complaint to collect on a 2001 Arizona judgment. Defendant argues that the action is time-barred under 12 V.S.A. § 506. Alternatively, he contends that there is a material dispute of fact as to whether the Arizona court had personal jurisdiction over him at the time it entered its judgment. We affirm

Defendant argued that the Arizona judgment should not be enforced because he was not properly served with the complaint in the underlying Arizona action. He provided a sworn statement to this effect and argued that his affidavit created a material dispute of fact. Even if the Arizona court had jurisdiction over him, defendant asserted that the judgment could not be enforced in Vermont under 12 V.S.A. § 506

Given the Arizona judgment's recital that defendant was in fact served the court found that defendant had the burden of making a reasonable showing that he was not actually served beyond his mere assertion to this effect.

We begin with defendant's assertion that this action is time-barred under 12 V.S.A. § 506. Defendant reads the statute to require that any action on a judgment must be brought within eight years from the date of the "original judgment." We reject defendant's interpretation of 12 V.S.A. § 506 because it would lead to absurd results. Section 506 provides that "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after." The phrase "rendition of the judgment" is not limited to the "original" judgment, as defendant posits. Section 506 specifically provides for the renewal of judgments; and when a judgment is renewed—in Vermont or elsewhere under another state's laws—the date of the renewed judgment is controlling for purposes of 12 V.S.A. § 506.

We agree with the trial court that defendant failed to establish that a genuine dispute of material fact existed as to whether he was served with the Arizona complaint. Certainly, under other circumstances, a party's affidavit might suffice to create a dispute of material fact sufficient to defeat summary judgment. In this case, however, the Arizona judgment was presumptively valid and the judgment recited that defendant had been served with the complaint. Defendant's bald assertion concerning lack of service was insufficient to create a genuine factual dispute regarding service.

Because defendant failed to put forth sufficient evidence to rebut the presumptively valid foreign judgment or draw into question the express finding by the Arizona court that he was properly served, mmary judgment was properly granted to H&E

ROBINSON, J., concurring in part, dissenting in part. The majority suggests that testimony about a critical fact, given under oath and based on personal knowledge, is insufficient to create a dispute of material fact for purposes of summary judgment. That is a dramatic departure from well-established and universal principles of summary judgment adjudication. I dissent from the majority’s holding that defendant failed to establish a genuine dispute of material fact as to whether he was served with the Arizona complaint and would reverse the trial court’s summary judgment ruling on that basis.

I am authorized to state that Justice Dooley joins this concurrence and dissent. 

SCOVT Reverses summary judgment in will contest because of conflicting evidence as to whether testator intended the will to be a conditional or absolute will

In re Holbrook, 2017 VT 15 

REIBER, C.J. The question presented in this will contest is whether the trial court correctly determined on summary judgment that the testator intended a last will and testament which she executed on the eve of surgery to be absolute rather than contingent on her surviving the surgery. We conclude that summary judgment was premature in this case because material factual issues remained in dispute concerning the testator’s intent, and therefore reverse.

The court found that neither of the competing inferences from the evidence was "more compelling than the other." and concluded that "the presumption against intestacy" must control, thus precluding a construction of the will as conditional.

It is correct that there is a general reluctance in estate law to find intestacy, hence the general preference for a clear expression of contingency. But when the evidence is in conflict on a genuine, material issue of fact—in this case whether testator intended the will to expire or to remain in effect after she survived her surgery—the usual and proper course is not to ignore that evidence as "ambiguous" but to deny the motion for summary judgment and permit the case to proceed to trial, where the trier of fact may weigh all of the evidence, assess the credibility of the witnesses, and ultimately resolve the factual dispute. The court could not rely on "presumptions."

Because the parties here offered conflicting evidence as to whether testator intended the will to be a conditional or absolute will, the case must be remanded for a trial to resolve that issue.

 Reversed and remanded

SCOVT affirms conviction for DUI death resulting. No abuse of discretion under Rule 702 in allowing pharmacologist/toxicologist to testify that defendant’s intoxication was the cause of the accident

State v.  Sullivan, 2017 VT 24

EATON, J. Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, in violation of 23 V.S.A. §§ 1201(a)(2) and 1210(f)(1), and leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). On appeal, he challenges the trial court’s jury instructions, admission of expert testimony, and denial of his motion for access to necessary services as a needy person pursuant to 13 V.S.A. § 5231(a)(2). We affirm defendant’s convictions but remand the matter for resentencing based on our conclusion that the trial court abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness.

Although we agree with defendant that the “death resulting” element requires a finding that defendant’s intoxication was a but-for cause of the victim’s death, we do not agree with his argument that the trial court’s jury instruction failed to convey this causation requirement

The State offered expert testimony from a board-certified pharmacologist and toxicologist who focuses on drugs and medications. Defendant argues that the witness is not an expert in alcohol, and thus his testimony as to whether defendant was under the influence of alcohol at the time of the accident was outside the scope of his expertise. Defendant also argues that his opinion as to the cause of the accident was also outside the scope of his expertise. 

Trial courts have “broad discretion to determine, on a case-by-case basis, whether some or any of the [Daubert] factors are relevant to evaluating the reliability of expert evidence before the court.” We are not persuaded that the trial court abused its discretion in determining that the testimony was sufficiently reliable for the jury to consider it. The opinions proffered by the State’s expert do not represent the type of “junk science” Daubert intended to thwart; rather, the testimony was supported by the witness’s qualifications as an experienced clinical pharmacologist and toxicologist whose work focuses on the effects of drugs and medications, including the pharmacodynamics of alcohol. Further, the witness detailed how his understanding of the effects of alcohol led to his opinion that the most likely cause of an accident under the circumstances of this case was defendant’s driving while intoxicated. This testimony was within his area of expertise, and the trial court did not abuse its discretion in so concluding.

The convictions are affirmed. The sentence is vacated and the matter is remanded for resentencing to allow defendant sufficient opportunity to present expert mitigation testimony, either at his own expense or at state expense if he is found to qualify for necessary services upon any renewed application for such services pursuant to the guidelines set forth in Administrative Order 4, § 5.

SCOVT affirms denial of motion to set aside default judgment of foreclosure. Does not decide whether permission is required to appeal a judgments of foreclosure based on a judgment lien

Cramer v. Billado, 2017 VT 38

ROBINSON, J. Defendant James Billado appeals the trial court’s denial of his motion to set aside a default judgment of foreclosure on the grounds that the trial court erred in allowing service of the foreclosure complaint by tack order and in declining to set aside the default foreclosure judgment in light of his defenses. Plaintiff Laura Cramer argues that defendant’s appeal was untimely and we thus need not consider the merits of his appeal. We conclude that the trial court’s orders were within its discretion and accordingly affirm.

While this case was pending, this Court on its own initiative issued an order requesting defendant to show cause why his appeal should not be dismissed for failure to file a timely motion for permission to appeal pursuant to 12. V.S.A. § 4601 (requiring court permission for appeal of judgment "for the foreclosure of a mortgage") and Vermont Rule of Civil Procedure 80.1(m) (requiring that request for permission to appeal be filed within ten days of entry of judgment or order appealed from "[w]hen the judgment is for foreclosure of the mortgage"). Defendant argues that by their plain terms, the above requirements apply only to judgments foreclosing a mortgage, and not to judgments of foreclosure based on a judgment lien. Plaintiff argues that pursuant to 12 V.S.A. § 2903(d), the foreclosure of judgment liens is subject to the same requirements as the foreclosure of a mortgage. We decline to decide this jurisdictional question because we conclude that even if defendant's appeal was timely, his claims on appeal fail on the merits.

We review the trial court's denial of the motion to set aside the judgment for abuse of discretion. LaFrance Architect, 2013 VT 115, ¶ 9.  A trial court "should give substantial weight to a meritorious defense when determining whether to vacate a default judgment." Id. ¶ 11.

The trial court’s conclusion that defendant did not present meritorious defenses was within its discretion. Defendant does not deny that plaintiff had a judgment against him for $50,000 from 2007, that plaintiff duly perfected her judgment lien, or that he paid any amounts toward that judgment. Instead, he essentially argues that he was entitled to an offset of plaintiff’s judgment on account of her prior misappropriation of funds from his business. As the trial court noted, collateral estoppel and the statute of limitations are both obstacles to his set-off claims in response to plaintiff’s foreclosure action. Given these considerations, and the absence of any substantial defense to plaintiff’s action for foreclosure, the trial court’s denial of defendant’s motion to set aside the default judgment in this case was within the trial court’s discretion.


SCOVT NOTE: The statute of limitations does not bar a "setoff" claim, which "shall be allowed, to the extent of plaintiff's demand" if it arises out of the transaction or occurrence that is the subject matter of plaintiff's claim.

A cross-claim or counterclaim shall not be brought if an independent action upon the same claim would have been barred under the provisions of this chapter at the time of commencement of the plaintiff's action, except that a counterclaim arising out of the transaction or occurrence that is the subject matter of plaintiff's claim shall be allowed, to the extent of plaintiff's demand, at any time.

12 V.S.A. § 463 .

Rule 13(c), in permitting recovery exceeding the opposing claim, states what was previously the practice in set-off. See 12 V.S.A. § 5469 (now superseded); Franklin Co. Realty Corp. v. Cunnius, 127 Vt. 452, 252 A.2d 524 (1969). Previously, defendant could, in a contract action at law, set off an opposing contract claim, 12 V.S.A. §§ 5461-5478 (now superseded), but such set-off was not compulsory.  Thus, under former practice, at least, a default judgment did not preclude a party from bringing  a later suit for indebtedness which existed before rendition of  the default judgment, Hutchins v. George, 92 Vt. 371, 104 Atl. 108 (1918).

Now, the failure to plead setoff as an affirmative defense results in a waiver of this defense. Wursthaus, Inc. v. Cerreta  149 Vt. 54, 539 A.2d 534 (1987).  Whether the claim is compulsory is determined by Rule 13.

SCOVT dismisses medical malpractice suit as untimely where no certificate of merit filed within the statute of limitiations.

McClellan v Haddock, 2017 VT 13   

SKOGLUND, J. Plaintiff in this wrongful-death action appeals from a trial court judgment dismissing her complaint as untimely. Plaintiff contends the trial court erred in: (1) denying her motion to amend the complaint to include a certificate of merit; (2) declining to treat the motion to amend as a petition to extend the statute of limitations; and (3) dismissing a claim for personal injuries incurred during the decedent’s lifetime.

The statute requires the filing of a certificate of merit "simultaneously with the filing of the complaint." 12 V.S.A. § 1042(a). The overarching purpose of the statute is to protect defendants from the burden of defending medical malpractice claims lacking in expert support. Denial of amendmand and dismissal of a complaint filed without the requisite certificate of merit attesting to such support is essential to effectuate that purpose.

Section 1042(d) provides that, "[u]pon petition to the clerk of the court where the civil action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section." The trial court here could not have granted a ninety-day extension of a statute of limitation that had already expired when the motion to amend was filed.

We affirm.

REIBER, C.J., dissenting. The outcome in this case is not mandated by the statutory language or its purpose. The certificate-of-merit requirement is to provide a mechanism to easily identify and dismiss baseless malpractice claims against health providers. The statute recognizes, however, that plaintiffs with legitimate claims may require extra time to comply with this requirement and provides for an automatic ninety-day extension. Plaintiff’s motion to amend the complaint should have been treated as such a request and allowed to go forward. Precluding plaintiff from doing so does not forward the goal of ferreting out unmerited claims and is inconsistent with this state’s preference of deciding cases on their merits and preserving the constitutional right of access to the courts. Moreover, under our liberal pleading rules, plaintiff adequately pleaded claims for injuries occurring prior to the statutory effective date that were not subject to the certificate-of-merit requirement. For these reasons, I would reverse and dissent from the majority’s affirmance of the dismissal.


SCOVT NOTE. See Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 (reaffirming McClellan and requiring strict compliance)

Calculation of prejudgment interest in contract case reversed so interest will begin to run no earlier than earliest date payment was due

Russell v. Hernon, 2017 VT 45  

SKOGLUND, J. Defendants appeal from a jury verdict in favor of plaintiff  in this breach-of-contract action. They challenge the jury instructions, the admission of certain evidence, and the court’s calculation of prejudgment interest. With the exception of prejudgment interest, we affirm the court’s judgment. The court’s prejudgment interest calculation is reversed and remanded for additional proceedings consistent with this opinion.

Plaintiff asked defendant to pay the sum in full by June 14, 2013. Defendants did not do so. We agree with defendants that June 14, 2013, appears to be the earliest date that prejudgment interest could begin to accrue. Because we cannot discern the basis for the court’s determination that interest began to accrue on May 1, 2013, we must reverse and remand the calculation of prejudgment interest for additional proceedings. See Sec’y, Vt. Agency Nat. Res. v. Irish, 169 Vt. 407, 419, 738 A.2d 571, 580 (1999) (reversing and remanding where trial court failed to make necessary findings). 

Affirmed, with the exception of the court’s calculation of prejudgment interest. The calculation of prejudgment interest is reversed and remanded for additional proceedings consistent with this opinion.

Conviction for sex offense reversed because of “golden rule” argument.

State v. Scales, 2017 VT 6

SKOGLUND, J. In September 2014, defendant was tried and convicted of three felony counts of lewd and lascivious conduct with a child that occurred between June 1, 2004 and June 1, 2006. He appeals his convictions, arguing that . . . the prosecutor’s closing “golden rule” argument improperly asked the jurors to put themselves in the position of a party—here, the purported victim:

As adults, no one would want to ever come into court . . . and say, okay, I’m going to talk now about my first sexual experience. . . . . Imagine how difficult it would be for an adult, and then put yourself in the eyes of twelve year-old child, and how difficult and challenging it would have been for her, and for her to come here, as wel We reverse and remand

This Court has condemned arguments made to the jury in which the prosecutor makes inflammatory statements or appeals to the sympathies of the jury. See State v. Bubar, 146 Vt. 398, 403, 505 A.2d 1197, 1200 (1985). This rule is well established. More than seventy years ago in Duchaine v. Ray, we noted that counsel’s urging of jurors to place themselves in the victim’s shoes was a “highly improper” and a “lamentable departure” from the rule against appeals to jurors’ prejudice. 110 Vt. 313, 321, 6 A.2d 28, 32 (1939). As in State v. Madigan, the prosecutor’s statements “exceeded the bounds of fair and temperate discussion, circumscribed by the evidence and inferences properly drawn therefrom.” 2015 VT 59, ¶ 31, 199 Vt. 211, 122 A.3d 517. 

Reversed and remanded.

The Town does not have the authority to prohibit, reduce, or limit firearms discharge within the Sportsman’s Club’s historical use at its shooting range.

North Country Sportsman's Club v. Town of Williston, 2017 VT 46

ROBINSON, J. This appeal tests the limits of a town’s authority to enforce a noise ordinance against a sport shooting range’s historically established operations. Plaintiff North Country Sportsman’s Club challenges citations issued by defendant Town of Williston to the Club for allegedly violating the Town’s noise ordinance. The Club seeks a declaration that under state law as well as its own ordinance the Town lacks authority to enforce its noise ordinance against the Club for engaging in sport shooting that is consistent with its historical usage. It asks that we reverse the lower court’s summary judgment declaration to the contrary.

We agree with the Club and reverse in part and affirm in part.  The Legislature has specifically restricted municipal authority to prohibit, reduce, or limit discharge at any sport shooting range in existence as of May 2006. 24 V.S.A. § 2291(8).The Court enters the following declaratory judgment. The Town does not have the authority to prohibit, reduce, or limit firearms discharge at the range that is within the Club’s historical use. As long as the Club’s operations are consistent with its historical operation of the range, using the May 22, 2006 baseline, the Town may not cite the Club for violating the Town’s noise ordinance. The Town may attempt to apply its noise ordinance to shooting at the range that exceeds the Club’s historical use unless the activity is exempt pursuant to an agreement voluntarily executed between the Town and Club as to its hours of operation.

Mortgages. SCOVT has no jurisdiction over appeal from dismissal of collateral attack on final judgment of foreclosure.

Billewicz v. Estate of Fanelli, No. 2017-028 (Vt. Mar. 1, 2017) (mem.) 

Pursuant to stipulation, the superior court issued a judgment order and decree of foreclosure. More than one year after issuance of a writ of possession, plaintiff filed a complaint alleging that the defendant had fraudulently mispresented the fair market value of the property. The court entered summary judgment in favor of defendant, noting the foreclosure judgment was final, that plaintiff had failed to follow the procedures for appealing the judgment pursuant to V.R.C.P. 80.1(m), and that nothing in the complaint showed that plaintiff could not have challenged the earlier stipulated value during the foreclosure proceedings. We dismiss plaintiff’s appeal.

A request for relief pursuant to V.R.C.P. 60(b) cannot be used to circumvent the strong legislative policy favoring finality of foreclosure judgments. Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458 (2002) (mem.) Although structured as a collateral action, plaintiff's complaint is essentially a request for relief from the foreclosure judgment pursuant to Rule 60(b). Therefore the appeal must be dismissed for lack of jurisdiction.

SCOVT NOTE. The strong legislative policy favoring the finality of foreclosure judgments: See V.R.C.P. 80.1(m). (a party seeking to appeal a foreclosure judgment must seek permission to appeal within ten days "of the date of the entry of the judgment or order to be appealed from."); Mortg. Lenders Network, USA v. Sensenich, 2004 VT 107, ¶ 7, 177 Vt. 592, 873 A.2d 892 (mem.).( a foreclosure decree is a final judgment even if a right to redeem exists, and even if further proceedings ancillary to the foreclosure itself are contemplated.);Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458, 806 A.2d 1001, 1003 (2002) (mem.) (Rule 60(b) cannot be used to circumvent requirement of seeking permission to appeal foreclosure decree);.Citibank, N.A. v. Groshens, 171 Vt. 639, 640, 768 A.2d 1272, 1273 (2000) (mem.) (dismissing appeal from court's denial of motion to reopen foreclosure judgment because of legislative policy promoting finality of foreclosure judgments).

Juries. Discussion of the case prior to submission.

 State v. Tristan Cameron, 2016 VT 134 [filed December 23, 2016] 

The Court ruled as a matter of first impression that it is improper for jurors in a criminal case to discuss the evidence and in-court events with each other prior to submission.

The Court cautioned trial judges who are presiding over jury trials to give an explicit pre-submission nondiscussion instruction, along with an instruction not to communicate with others about the case. The instruction can be given in an orientation of potential jurors or in case-specific preliminary instructions. To the extent that the trial judge is giving reminder instructions during the trial, they should specifically address intra-jury communications.

Other jurisdictions are unanimous in prohibiting such discussion in criminal cases, although the Court noted that some courts have authorized juror evidence discussions prior to the submission of the case to the jury in civil cases. See D. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil. L. Rev. 92 (2002) (discussing authorization for pre-deliberation discussion in civil cases in Arizona, Colorado, and District of Columbia).

In the case before it it was inadequate for the trial judge to give daily instructions to the jurors not to discuss the case with others, without specifically addressing discussions among jurors.