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

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


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

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

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

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

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

SCOVT NOTE.

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

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

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

On one hand the opinion can be read to suggest the general rule is a narrow and  applies only to summary judgment denials based on the sufficiency of evidence.  On the other hand, to the extent  the exception is grounded  in federal law, the opinion can be read  to say the exception is a narrow one, for "pure" questions of law only. [See update below]

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

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

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

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

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

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

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

UPDATE.  Since this scovtnote was written, the U.S Supreme Court resolved the conflict in the circuits consistent with Second Circuit  precedent and  held that a post-trial motion under Rule 50 is not required to preserve for appellate review a "purely legal issue" resolved at summary judgment.  Dupree v. Younger (05/25/2023) (citing Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004))