SCOVT affirms judgment for defendant in wrongful death claim, holding the evidence supported the verdict, no error in evidentiary rulings and that erroneous submission of comparative negligence charge to the jury was harmless.

 Shaffer v. Northeast Kingdom Human Services, Inc., 2025 VT 31 [6/20/2025]

REIBER, C.J.   In this wrongful-death action, plaintiff the Estate of Jared Shaffer, through Daniel Shaffer as administrator, appeals from a jury verdict and judgment in favor of defendant Northeast Kingdom Human Services, Inc.  The estate argues the court erred by instructing the jury on comparative negligence, by providing jury instructions that it claims were misleading, and by sustaining defendant’s objections to certain questions the estate attempted to ask defendant’s corporate representative at trial.  The estate further argues the jury verdict must be reversed because the jury deliberated too quickly and because the evidence overwhelmingly supported the estate’s claim that defendant acted negligently in performing its duty to oversee and monitor developmental disabilities services and care for decedent.  We find error in the proceedings but no prejudice to the estate and therefore affirm.

 

A.  Comparative Negligence . On appeal, the estate first claims that the trial court erred by denying its pretrial motion to strike the affirmative defense of comparative negligence.  We agree the trial court committed error in its analysis by conflating the identity of the “plaintiff,” the administrator of the estate, with decedent’s co-guardian and father, Daniel Shaffer.  However, the court acted within its discretion to consider the motion, determine that the defense of comparative negligence should remain because of disputed questions  of law and fact, and charge the defense to the jury at the conclusion of evidence.  The court’s error was rectified by correction in the jury charge and jury instructions and, ultimately, the estate was not prejudiced because the jury never reached the affirmative defense because it concluded there was no negligence on defendant’s part.  The estate also claims that the court should not have instructed the jury on comparative negligence, failed to preserve this objection to the jury instructions by not raising it below.

 

B.  Evidentiary Rulings. Next, the estate argues the trial court erred in preventing its attorney from questioning defendant’s corporate representative about the master grant agreement between defendant and the state, The court ruled, that the witness did not have an understanding of the document and therefore could not offer testimony about the document. On appeal, the estate argues that the witness should have known about the master grant agreement, because he was the designated corporate representative and a 2019 deposition notice to him indicated that the estate would question him about the agreements.  The Vermont Rules of Evidence provide “the testimony of a witness may be excluded . . . unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  V.R.E. 602.  Where, as here, the witness testified that he had no knowledge of the agreements, the trial court did not abuse its discretion in prohibiting further questioning about the agreements.  

The estate next argues the court erred in preventing it from questioning the corporate representative about a report from a third-party audit of defendant’s operations. After defendant objected  , the court allowed the estate to ask additional questions after which the estate  turned to a completely different line of questioning.  At no point did counsel for the estate attempt to move the audit report into evidence, and the court never made a definitive ruling excluding the testimony or the report.  “Where counsel abandons a question or line of questioning before the court has ruled that he must do so, there is no basis for a claim of error.”  State v. Kasper, 137 Vt. 184, 206, 404 A.2d 85, 97 (1979)

C.  Jury Verdict.  Finally, the estate argues the jury failed to understand the court’s instructions and the speed at which the jury returned its verdict was reversible error.   There is no requirement that a jury deliberate any longer than may be necessary to agree upon a verdict. From the evidence in the light most favorable to the verdict, the jury could reasonably conclude that defendant did not owe decedent a duty to provide or oversee his medical care.  Therefore, the jury’s verdict must stand.   

SCOVT affirms dismissal of defamation and emotional distress claims, holding an alleged false report to police was absolutely privileged, and that trial court correctly ruled the anti-SLAPP statute applies, but remands for evaluation of plaintiff’s constitutional challenge that attorney fee award under anti-SLAPP statute deprives him of his right to a remedy under Article 4, to a jury trial under Article 12, and impermissibly burdens his attempt to exercise his rights to free speech and petition the court)

 Talandar v.  Manchester-Murphy,2024 VT 86 [12/20/2024]

CARROLL, J.   Plaintiff Draxxion Talandar appeals from a civil division order granting judgment on the pleadings to defendant Elizabeth Manchester-Murphy and awarding her attorney’s fees under Vermont’s anti-SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041.  In his complaint, plaintiff raised claims of defamation and intentional infliction of emotional distress (IIED), alleging that defendant maliciously made a false report of sexual and physical assault to the police that resulted in plaintiff being criminally charged, arrested, and held without bail for almost two years before his ultimate acquittal.  On appeal, plaintiff argues that the trial court erred in: (1) concluding that his claims were barred by a common-law absolute privilege for witness communications preliminary to a proposed judicial proceeding and therefore entering judgment on the pleadings; and (2) granting defendant’s special motion to strike his complaint under § 1041(a).  We agree that defendant’s police report was absolutely privileged and thus affirm the trial court’s grant of judgment on the pleadings.  While we conclude that plaintiff’s challenges to the court’s interpretation of 12 V.S.A. § 1041 are without merit, we remand for the court to consider plaintiff’s unaddressed constitutional challenges to that statute.

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Finally, plaintiff contends that applying the  anti-SLAPP statute applies to his suit  unconstitutionally deprives him of his right to a remedy under Article 4 and to a jury trial under Article 12, and the compulsory fee award impermissibly burdens his attempt to exercise his rights to free speech and petition the court.  See Vt. Const. ch. I, arts. 4, 12. The trial court failed to meaningfully engage these arguments when plaintiff raised them below, instead observing that the anti-SLAPP statute already represented a legislative balancing of the conflicting constitutional rights at issue.  This does not answer plaintiff’s argument, and we decline to address these contentions for the first time on appeal, and therefore remand to the trial court for the purpose of considering plaintiff’s constitutional challenges to the anti-SLAPP statute. 

 

The trial court’s entry of judgment on the pleadings is affirmed.  Its ruling on defendant’s special motion to strike is affirmed in part but remanded for evaluation of plaintiff’s constitutional challenges to the anti-SLAPP statute.

SCOVT reverses order granting Anti-SLAPP motion because the speech underlying the claim was not made in connection with a public issue; also holding the failure to take interlocutory appeal did not preclude challenge to the order. Affirms summary judgment dismissing defamation claim, holding - even if summary judgment was based on discovery sanction precluding use of evidence =- no special finding was required to support the discovery sanction, and that plaintiff in any event failed to demonstrate evidence of pecuniary loss specifically attributable to the claim or other actual harm, as required to support a defamation claim.

  Polak  v. Ramirez-Diaz, 2025 VT 9 [2/28/2025]

EATON, J.   Plaintiffs appeal the trial court’s order granting defendants’ special motion to strike plaintiffs’ claims of defamation, malicious prosecution, and intentional infliction of emotional distress (IIED) pursuant to Vermont’s anti-SLAPP law, 12 V.S.A. § 1041.  We conclude that the court erred in granting the special motion to strike because the speech underlying the affected claims—defendants’ allegedly false statements to police and the court accusing plaintiffs of criminal activity—was not made in connection with a public issue.  We therefore reverse the order granting the motion to strike and remand for further proceedings on the claims that were stricken. 

Plaintiffs also challenge a discovery sanction imposed by the trial court for plaintiffs’ failure to respond to defendants’ interrogatories and requests for production related to their remaining defamation claim, arguing that it amounted to dismissal without the requisite findings.  However, we hold that the court acted within its discretion in imposing the discovery sanction and affirm that order and the subsequent order awarding summary judgment to defendants on the related defamation claim.  

Despite court order plaintiffs did not timely produce the requested discovery, The court denied defendants’ request for dismissal but prohibited plaintiffs from introducing at trial any evidence that plaintiffs should have disclosed in response to defendants’ discovery requests. .” Citing John v. Med. Ctr. Hosp. of Vermont, Inc., 136 Vt. 517, 519,  (1978), plaintiffs argue this order effectively amounted to a dismissal of the defamation claim without sufficient findings. But our cases carefully distinguish imposition of a sanction of dismissal or default from a sanction that effectively results in dismissal. No special findings are required when there is no outright dismissal or default.  Stella ex rel. Estate of Stella v. Spaulding, 2013 VT 8, ¶ 22,  State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 22, The sanction precluding plaintiff from offering certain evidence, was not a dismissal, and no special findings were required.  Stella, 2013 VT 8, ¶ 22.

 Plaintiffs failed to respond to defendants’ requests or the court’s orders, despite having had nearly nine months to do, and the court did not abuse its discretion by prohibiting them from submitting evidence relating to those discovery requests.  

 The court’s decision awarding summary judgment on the defamation claim, is supported by the record. Plaintiffs failed to demonstrate that they had evidence to support their defamation claim.   “To survive a defendant’s motion for summary judgment, the plaintiff must respond with specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima facie case.”  Gates v. Mack Molding Co., 2022 VT 24, ¶ 14, 216 Vt. 379, 279 A.3d 656; Cate v. City of Burlington, 2013 VT 64, ¶ 11, 194 Vt. 265, 270, 79 A.3d 854 (“A party opposing summary judgment may not rest on allegations or denials, but must demonstrate, with citations to the record, that a fact is genuinely disputed.”). 

The court granted summary judgment to defendants on the defamation claim, noting that in their response to defendants’ statement of undisputed facts, plaintiffs did not provide specific citations to parts of the record that demonstrated a genuine dispute as to any factor  identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the claim, or other actual harm, as required to support a defamation claim. Even when they finally responded to defendants’ interrogatories, they did not identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the remaining claim, or other actual harm. Thus, summary judgment on the defamation claim was appropriate.

Plaintiffs argue that because defendants did not seek an immediate appeal from the trial court’s decision on the anti-SLAPP motion.  defendants’ challenge to the anti-SLAPP decision is untimely. Defendants rely on 12 V.S.A. § 1041(g), which states: “An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.”

 

Viewed in context, § 1041(g) clarifies that, for purposes of Vermont law, an order granting or denying an anti-SLAPP motion is not a collateral final order.  Instead, it is an interlocutory order that must satisfy the Rule 5 criteria to be immediately appealed. . However, § 1041(g) does not state that an order resolving a motion to strike is only appealable under Rule 5, and we decline to read such a requirement into the statute. 

Absent an express indication of a contrary intent from the Legislature, we conclude that a timely appeal from a final judgment preserves a challenge to an interlocutory order resolving an anti-SLAPP motion.  We therefore have jurisdiction to consider plaintiffs’ claims

The trial court’s May 13, 2024, order awarding partial summary judgment is affirmed.  The trial court’s August 17, 2021, order granting defendants’ motion to strike is reversed and the matter is remanded for further proceedings on plaintiffs’ remaining claims.