“[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.