SCOVT affirms summary judgment dismissing premises liability claim brought on behalf of trespassing child, declining to adopt attractive nuisance doctrine recognized in the Restatement, holding protection of children was not “plain justification “ for overruling longstanding no-duty-to-trespasser precedent that has fostered certainty, stability, and predictability in Vermont’s landowner liability law.

   Premises Liability. Attractive Nuisance. Stare Decisis

Treadway v. Green Mountain Power Corporation, 2026 VT 20 [6/5/2026] 

EATON, J.   Plaintiff Ian Treadway appeals a civil division order granting summary judgment to defendant, Green Mountain Power (GMP).  Plaintiff’s suit stemmed from a severe injury incurred while trespassing at defendant’s electrical substation.  Consistent with Vermont’s common law, the civil division granted defendant’s motion for summary judgment concluding that defendant owed no duty to plaintiff, who was a trespasser.  On appeal, plaintiff does not contest that Vermont’s common law precludes recovery on his complaint.  However, plaintiff asks this Court to adopt the attractive-nuisance doctrine outlined in the Restatement (Second) of Torts § 339 (1965) and remand for a trial.  We decline to overrule our existing cases regarding the duty owed to trespassers and affirm. In Demag v. Better Power Equipment, Inc., we explained that when considering overruling precedent that has created “certainty, stability, and predictability” in our common law, this Court will only deviate from such precedent when “our community’s ever-evolving circumstances and experiences” create “plain justification” to do so.  2014 VT 78, ¶ 14. ¶ 14. For over 115 years, Vermont law has recognized that landowners, absent willful or wanton actions, are not liable to trespassers. We conclude that the common law on this issue has created certainty, stability, and predictability in the rule.   No “plain justification” exists to adopt the attractive-nuisance doctrine.  In Demag, we specified that the required “plain justification” must be derived from Vermont community standards and not those in existence in other states.  2014 VT 78, ¶ 14; see also Zeno-Ethridge v. Comcast Corp., 2024 VT 16, ¶¶ 9-15, 219 Vt. 121, 315 A.3d 978 (declining to modify Vermont’s common law for negligent-infliction-of-emotional-distress claims because Vermont’s community circumstances and experiences demonstrated policy reasons for common-law rule were still relevant in Vermont). We reject plaintiff’s argument that adoption of the attractive-nuisance doctrine in the majority of other states is “strong evidence that common standards have evolved” such that Vermont common law should also be modified. The current law—constitutional, legislative, and common law—surrounding public access to private land and correlated reductions in landowner liability demonstrates significant public-policy justification for maintaining the status quo.  Doing so provides predictability for landowners regarding liability to trespassers and also maintains the assumptions regarding owed duties that underpin the Legislature’s statutory scheme encouraging public access to private lands throughout the state.   This clear legislative and constitutional desire to support public access to private land in Vermont could not exist without protection against liability for land possessors who open their land to the public. Modification to our common-law rule regarding landowner liability to trespassers, children or otherwise, could have significant impact upon and drastically alter the deliberate balance established by the Legislature to support public access to private land developed in these statutes. Thus the protection for trespassing children too immature to appreciate and guard against dangerous does not rise to the level of “plain justification” required to overturn our longstanding precedent through judicial order. For over a century, our no-duty-to-trespassers law has harbored certainty, stability, and predictability within Vermont’s landowner liability law.  Given the doctrine’s integration into our Vermont community’s circumstances and experiences, and the complex and far-reaching policy considerations both supporting and opposing any change in Vermont, we decline to adopt the attractive-nuisance doctrine by judicial fiat. Accordingly, we reaffirm that under Vermont’s common law, absent willful or wanton conduct, “[o]ur rule is that the owner or occupant is under no obligation to [protect] a trespasser, whether adult or child,” from injury by reason of the claimed unsafe and dangerous condition of the premises.  Trudo, 116 Vt. at 223, 73 A.2d at 307.  Affirmed.

SCOVT affirms denial of post-conviction relief on the basis that plaintiff failed to prove ineffective assistance of counsel; trial court’s error in applying claim preclusion to bar claim was harmless

 Post-Conviction Relief. Ineffective Assistance of Counsel

In re Bruyette, 2026 VT 18 [5/22/2026]

WAPLES, J.   Petitioner Joseph Bruyette sought post-conviction relief (PCR) on the ground of ineffective assistance of sentencing counsel.  The civil division denied the PCR petition on the merits and, in the alternative, held that the petition was barred by the doctrine of claim preclusion.  Petitioner appealed, arguing the court erroneously denied his claim on the merits, excluded admissible evidence at the final hearing, and applied the doctrine of claim preclusion in the context of a PCR proceeding.  We conclude that the court improperly applied claim preclusion but that the error does not require reversal because petitioner failed to prove his claim of ineffective assistance of counsel.  We therefore affirm.  Petitioner failed to fulfill his heavy burden in overcoming the “strong presumption” that Attorney Kershaw’s conduct “fell within the wide range of reasonable professional assistance.”  In re Grega, 2003 VT 77, ¶ 7. ¶ 2 We further conclude petitioner failed to demonstrate a reasonable probability that, but for Attorney Kershaw’s alleged errors, the result of the proceeding would have been different.  Williams, 2014 VT 67, ¶ 29.  We agree with petitioner that the court erred in applying claim preclusion here.  As we have explained, the civil doctrine of claim preclusion does not apply to PCR cases.  In re Laws, 2007 VT 54, ¶ 14, 182 Vt. 66, 928 A.2d 1210 (explaining that while claim preclusion ordinarily precludes litigant “from raising a claim that was or could have been fully litigated in a prior judicial proceeding,” claim preclusion “has traditionally not been applied to habeas corpus relief”); see In re Chandler, 2013 VT 10, ¶ 16 n.4, 193 Vt. 246, 67 A.3d 261 However, he doctrine of successive petitions, like claim preclusion, “applies to ‘relitigation of claims actually raised and decided on the merits in an earlier PCR.’ ”    Vermont’s PCR statute, 13 V.S.A. § 7134, provides: “The court is not required to entertain a second or successive [PCR] for similar relief on behalf of the same prisoner.”  This suggests that the court has discretion in deciding whether to entertain a second or successive PCR.Because the State alleged that petitioner’s ineffective-assistance claim was litigated and decided in Bruyette 2019, the PCR court should have assessed the State’s motion under the doctrine of successive petitions rather than claim preclusion.  However, because we affirm the court’s decision that petitioner failed to demonstrate ineffective assistance of sentencing counsel, the error is not a basis for reversal.  Affirmed.

Divided Court upholds charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections

 

Vermont Constitution. Noncitizen Voting 

Morin  v. City of Burlington , 2026 VT 17 [5/15/2026]

WAPLES, J.   In this appeal, we consider whether a Burlington charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution.  Plaintiffs sought declaratory and injunctive relief to this effect below and challenge the trial court’s dismissal of their complaint for failure to state a claim upon which relief can be granted.  We extend our discussion in Ferry v. City of Montpelier, 2023 VT 4, 217 Vt. 450, 296 A.3d 749, to clarify the distinction between local and statewide elections.  We conclude that plaintiffs’ complaint failed to demonstrate that school elections are statewide elections that implicate § 42.  See Ferry, 2023 VT 4, ¶ 1 (explaining § 42 “does not apply to local elections”).  We affirm the trial court’s dismissal.  

Chapter II, § 42 of the Vermont Constitution.  provides: Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state.    In Ferry, we held that § 42 applies to statewide elections but does not apply to municipal elections.  2023 VT 4, ¶¶ 9, 36.

We distinguish local and statewide elections as follows: when the question voted on has been (1) delegated to the locality, and (2) such delegation is lawful, the election is properly a local election.  On the other hand, when the question either  (1) has not been delegated or (2) cannot lawfully be delegated to local governments, the election is properly a statewide election.   Plaintiffs argue that although Burlington’s school board and school budget elections may appear to be local elections, under Vermont’s current school-funding mechanisms, they are properly categorized as statewide elections subject to § 42

We reject plaintiffs’ arguments.  While we are “particularly wary of dismissing novel claims,” like the one before us, on a motion to dismiss for failure to state a claim because “[t]he legal theory of a case should be explored in the light of facts as developed by the evidence,” factual development of the complaint’s legal claims would not change our conclusion here.  Montague, 2019 VT 16, ¶ 11 (quotation omitted).  Given plaintiffs’ complaint did not present a sufficient basis to allow this Court to evaluate whether statewide school-funding mechanisms make the local-voting provisions of Title 16 an unconstitutional delegation of authority, it does not satisfy the rigorous standard necessary  for us to nullify an act of the Legislature.

ZONAY, Supr. J., Specially Assigned, concurring and dissenting.   The majority concludes that plaintiffs failed to demonstrate that school-board and school-budget 19 elections are statewide elections subject to the voter-eligibility requirements of Chapter II, § 42 of the Vermont Constitution.  I concur in part because I agree that a vote to elect members of the Burlington School District’s Board of School Commissioners is, as a matter of law, a local election.  Plaintiffs’ argument that the Burlington City Charter amendment violates § 42 as applied to votes to ratify the District’s education budget, however, demands an answer to the question left open in Ferry v. City of Montpelier—how do we distinguish between local and statewide issues where a vote is “municipal in name” but allegedly statewide in character?  2023 VT 4, ¶ 50, 217 Vt. 450, 296 A.3d 749.  In my view, the text of our state Constitution supplies a complete answer to that question: § 42 provides that its voter-qualification requirements apply to votes “touching any matter that concerns the State of Vermont.”  Vt. Const. ch. II, § 42.  It is undisputed that under Vermont’s current education-funding structure, a vote on the District’s annual education budget has statewide effects.  That being the case, I would reverse the trial court’s dismissal of plaintiffs’ claim that the Burlington City Charter amendment violates § 42 as applied to the District’s education-budget vote. 

SCOVT vacates default judgment for failure to appear at jury draw, holding at least 7 days’ written notice was required under V.R.C.P. 55(c)(4)

 

1  Default;  Rule 55(c)(6) 

    Westwardhos LLC v. Anatoly Glass LLC , 2026 VT 19 [5/29/2026]

COHEN, J. (Ret.), Specially Assigned.   Tenant Anatoly Kishinevski appeals pro se from the trial court’s order granting landlord Westwardhos LLC a default judgment under Vermont Rule of Civil Procedure 55(c)(6) following tenant’s failure to appear at jury draw. Tenant argues, among other things, that the trial court erred in entering default judgment without holding a hearing on seven-days’ notice as required under Rules 55(c)(6) and 55(c)(4).  We vacate and remand for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Rule 55(c)(4) and conduct further proceedings as necessary.  The rule’s plain language makes it clear that holding a hearing on the default judgment motion is mandatory.  The rule states that “[i]f the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days’ written notice.”  V.R.C.P. 55(c)(4) (emphasis added). In this case, tenant did not appear for jury draw, but he had otherwise appeared in the matter, and landlord moved for a default judgment.  The trial court was therefore required to provide tenant with a hearing on seven days’ written notice under Rule 55(c)(4) before deciding the motion.  The court abused its discretion when it failed to do so, granting the motion for default judgment the same day.  When the trial court entered default judgment against tenant, it did not cite to Rule 55(c)(4), instead relying on Rule 55(c)(6).  Rule 55(c)(6) states: “In those cases in which a party has appeared in the action but has failed to appear at a duly noticed trial on the merits, any other party seeking affirmative relief may either waive trial and move for a default judgment or proceed to trial.”  The rule goes on to explain that “[i]f the party seeking affirmative relief chooses to file a motion for default judgment, a hearing shall be scheduled on the motion pursuant to” Rule 55(c)(4).  V.R.C.P. 55(c)(6).  If the jury draw is part of a duly noticed trial on the merits for the purposes of this rule, Rule 55(c)(6) requires a notice and hearing under Rule 55(c)(4) if the nondefaulting party moves for default judgment. Accordingly, we conclude that the trial court did not satisfy the hearing requirement of Rule 55(c)(4) when it held the hearing on landlord’s request for default judgment the same day and without notice to tenant. Finally, landlord argues that even if an additional default judgment hearing was required, the failure to hold such a hearing was harmless error because tenant did not demonstrate prejudice.  We conclude that tenant was not required to make such a showing under the circumstances here.  Entry of default judgment against a party who has appeared in a case without first providing notice and an opportunity to be heard implicates that party’s due-process rights.  See Reuther, 146 Vt. at 542, 507 A.2d at 973 (explaining that because defendant was not given notice before court entered default judgment, “ ‘[t]o get such a judgment without evidence and without notice is not in our opinion due process of law’ ” (quoting Bass, 172 F.2d at 210)); see also Dougherty, 147 Vt. at 366, 518 A.2d at 365 (“Due process favors the rights of the defendants to be heard in their own defense.  Denial of that right, and rejection of the remedies for default, 7 must have strong support.” (alteration and quotation omitted)).  Accordingly, “[a] failure to give the required notice generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment.”6  10A M. Kane & A. Steinman, Federal Practice and Procedure § 2687 (4th ed. 2026); see, e.g., Bass, 172 F.2d at 210 (concluding that failure to provide notice under Federal Rule 55 to defaulting party was error and “[t]o get such a judgment without evidence and without notice is not in our opinion due process of law”); In re Roxford Foods, Inc., 12 F.3d 875, 881-82 (9th Cir. 1993) (holding that failure to provide notice of motion for entry of default judgment violated defaulting party’s due-process rights); Press v. Forest Lab’ys, Inc., 45 F.R.D. 354, 357 (S.D.N.Y. 1968) (“Where notice of a motion for a default judgment is required, but not given, such a judgment entered without notice must be vacated as a matter of law.”).  For this reason, we conclude that the judgment must be vacated and remanded for the trial court to provide tenant with the required notice and hearing.    Vacated and remanded for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Vermont Rule of Civil Procedure 55(c)(4) and conduct further proceedings as necessary.

SCOVT affirms dismissal for lack of subject matter jurisdiction of a superior court complaint challenging PUC denial of request to submit interrogatories to commissioners concerning their deliberations, holding 3 V.S.A. § 809b allows review when an agency compels discovery – not when the agency denies discovery.

 Administrative Appeals. Discovery. Jurisdiction

1.      Otter Creek Solar LLC v. Vermont Public Utility Commission, 2026 VT 15 [May 8, 2026]

SCOVT affirms summary judgment that Town has authority to maintain and repair public trails to ensure the public's access, holding this authority is implied from the definition of a trail as a public right-of-way.

 

1.    Public Trails.

       Echeverria v. Town of Tunbridge, 2026 VT 5 [2/20/2026]

SCOVT affirms ruling that town failed to prove “necessity” under the condemnation statute, holding that necessity is “a question of fact which is to be determined exclusively by the trial court,” and that the record supports the finding that the town did not meet its burden to prove necessity.

 

1.    Condemnation. Factual findings.

     Mongeon Bay Properties, LLC v. Town of Colchester, 2026 VT 1 [1/23/2026]

SCOVT affirms dismissal of declaratory judgment action for lack of jurisdiction because the claim seeking determination of applicability of short-term rental ordinance is not ripe.

 

1.    Jurisdiction. Declaratory Judgment; Ripeness. 

       32 Intervale, LLC v. City of Burlington, 2026 VT 9 [4/10/2026]

SCOVT affirms, as supported by the evidence, family division denial of petition to terminate parental rights and separate civil division dismissal of appeal from family division adoption ruling, holding civil division lacked appellate jurisdiction of adoption proceeding that was transferred from probate to family division and consolidated with the preexisting divorce action pursuant to 15A V.S.A. § 3-207

 

1.    Jurisdiction; Appeals from adoptions transferred to  Family Division. 

          In re K.P. , 2026 VT 4 [2/20/2026]

SCOVT affirms interlocutory ruling that probate division has jurisdiction to require reimbursement of an estate for losses resulting from malfeasance of a financial guardian

 

1.    Probate Jurisdiction.

       In re Thomas, 2026 VT 12 [4/24/2026]

SCOVT reverses probate court dismissal of adoption petition for lack of service on parents, holding service by publication is “personal service” within meaning of 15A V.S.A. § 3-403(a), based the former caption of V.R.C.P. 4(d).

    

1.    Procedure. “Personal Service” can include Service by Publication.  

      In re O.R.G., 2026 VT 6 [2/20/2026]

SCOVT reverses trial court denial without reasons of beneficiary’s request to amend complaint to seek removal of trustee, but affirms denial of request for information, holding beneficiary has no right to information about a revocable trust even though the settlor is incapacitated.

 

1.    Procedure. Amending Pleadings. Trusts.   

     In re Trust of Marsha Milot, 2026 VT 7 [3/6/2026] 

    REIBER, C.J. Petitioner Jennifer Milot appeals the denial of her petition to open a trust action to obtain information about the administration and assets of a revocable trust whose settlor, Marsha Milot, is still alive. Petitioner claims the probate division erred by: failing to apply the correct legal standard when deciding to dismiss petitioner's action; failing to consider whether petitioner's information requests were "unreasonable under the circumstances" as required by statute; and concluding that under 14A V.S.A. § 603, co-trustees Valerie Wiederhorn and Curtis Hennigar owed no duty to provide information regarding the trust and co-trustees' administration to petitioner. We conclude that while the trust remains revocable, petitioner is not entitled to the information she seeks under § 813 of the Vermont Trust Code. However, we hold that the probate division erred by failing to consider petitioner's request to amend her complaint to seek removal of co-trustee Wiederhorn, and therefore reverse and remand for it to do so.

V   Vermont Rule of Probate Procedure 15(a) provides that leave to amend a petition "shall be freely given when justice so requires."  Petitioner asked for permission to amend her complaint to seek removal of co-trustee Wiederhorn under 14A V.S.A.§ 706. 14A V.S.A. § 706. Section 706 provides that "[t]he settlor, a cotrustee, or a beneficiary" may seek to have a trustee removed or replaced for "a serious breach of trust," a "lack of cooperation among cotrustees," or other enumerated reasons. The Official Comment to § 706  indicates that if a settlor is incapacitated, a beneficiary has the right to petition for trustee removal under § 706. The probate division dismissed the petition without addressing petitioner's request, effectively denying it. 

      Both Rule 15 and Vermont's common-law tradition "encourage liberality in allowing amendments to pleadings" when doing so will not prejudice the other party. Bevins v. King, 143 Vt. 252, 254, 465 A.2d 282, 283 (1983). While the trial court may deny an amendment if it would prejudice another party or is frivolous or made in bad faith, the court did not consider those factors here. Instead, it simply did not address the request, which was an abuse of discretion. See PeakCM, LLC v. Mountainview Metal Sys., LLC, 2025 VT 50, ¶ 18 (explaining that failure to exercise discretion is abuse of discretion). 

In sum, we hold that petitioner was not entitled to receive trust information under § 813 because the trust remains revocable while settlor is alive. However, we reverse and remand the dismissal order for the probate division to consider petitioner's request to amend her petition. In so holding, we take no position on whether settlor is in fact incapacitated, whether petitioner is a qualified beneficiary, or any other factual questions raised by this appeal. Those matters are for the probate division to resolve in the context of any further proceedings that occur on remand.

Reversed and remanded for the probate division to address petitioner's request to amend her petition to seek removal of co-trustee(s).

SCOVT Note re: "failure to exercise discretion is abuse of discretion" See Foman v. Davis, 371 U.S. 178 (1962) (Marshall, J, ):

Rule 15 (a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded . . .  Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

371 U.S. at 182. 

SCOVT reverses ruling that deed created a joint tenancy with right of survivorship, holding that deed created a tenancy in common because it did not evince the clear intent to convey a joint tenancy

 

1.    Conveyancing; Joint Tenancy. 

      Kirshon v. Abodeely-Mill. 2026 VT 2 [1/23/2026]

Divided Court denies motion to dismiss appeal from administrative agency, holding that tolling provision of Appellate Rule 4(b) is triggered by post-judgment motions that are “substantively indistinguishable” from a Rule 59 motion.

 

1.    Procedure. Administrative Appeals. 

     In re  VT Real Estate Holdings 1 LLC, 2026 VT 13 [4/17/2026]

Divided Court affirms denial of motion to suppress breath test, holding no violation of statutory right to consult counsel where officer provided materially false information to on-call attorney – declining to overrule State v. Fredette, 167 Vt. 586 (1997) (mem.) )

 Stare Decisis. Breath Test. 

State v. Eaton, 2026 VT 14 [4/24/2026]

SCOVT reverses and remands criminal conviction, holding that jury charge defining “beyond a reasonable doubt” as “great certainty” is plain error under federal standards, overruling State v. Levitt, 2016 VT 60

 

1.    Plain Error. Stare Decisis

      State v. Kolts, 2026 VT 10 [4/10/2026] 

Divided Court reverses, as abuse of discretion, dismissal of foreclosure action under Rule 41 for failure to prosecute in the name of the real party in interest, holding Rule 25 governs transfers of interest pending litigation and that real-party- in-interest rule applies only at the time the action commences.

 Ditech Financial LLC v. Brisson, 2025 VT 54 [9/18/2025]

CARROLL, J.   In this foreclosure action, plaintiff Ditech Financial LLC appeals the trial court’s order dismissing the case with prejudice and vacating the foreclosure judgment for plaintiff’s failure to prosecute.  We agree with plaintiff that the court abused its discretion in dismissing the case for want of prosecution and thus reverse the court’s order, reinstate the judgment of foreclosure, and remand for further proceedings consistent with this opinion.

 

In July 2024, the court concluded the parties agreed that US Bank Trust National Association was not the real party in interest, but that “a glaring question” remained “as to who the real party in interest is.”  The court set a hearing for the parties to present evidence on the real party in interest stating that “the action w[ould] be dismissed for failure to prosecute” if plaintiff “fail[ed] to prove who the real party in interest is at the hearing.”

 

A hearing was held in August 2024, following which the court dismissed the case.  The court concluded “Ditech no longer exists” and had gone through bankruptcy, that plaintiff failed to prove that it, or Shellpoint, emerged from bankruptcy with continued control in the foreclosure judgment and that plaintiff  failed to prove who the real party in interest is.”  Accordingly, the court dismissed the case with prejudice and vacated the foreclosure judgment.

 

On appeal, plaintiff argues that the court lacked authority to dismiss the case with prejudice or vacate the foreclosure judgment under the applicable civil rules. 

 

Rule 17

 

We begin our discussion with the applicable rules governing the real party in interest.  Civil Rule 17(a) requires that an action “be prosecuted in the name of the real party in interest.”  Rule 17(a) applies at the time the action commences.  Hilbrands v. Far E. Trading Co., 509 F.2d 1321, 1323 (9th Cir. 1975); see also Smedberg v. Detlef’s Custodial Serv., Inc., 2007 VT 99, ¶ 30,(noting  V.R.C.P. 17(a) “must be construed to the same effect” as “identical” federal rule); Reporter’s Notes, V.R.C.P. 17 (“This rule is based on Federal Rule 17, as modified in Maine Rule 17.”). 

 

 In her 2023 motion to dismiss plaintiff’s motions, defendant did not challenge plaintiff’s standing at the time the action commenced, nor did the court consider whether plaintiff was the proper plaintiff to have commenced the suit.  Thus, Rule 17 was inapplicable.

 

Rule 25

 

 Rather, to the extent a transfer occurred during the pendency of the proceedings, Civil Rule 25(c) governs.  Rule 25(c) provides “[i]n case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”

 

Rule 25 “expressly permits parties to continue in an action, even if they do not remain the real party in interest, as long as the cause of action itself survives the transfer to the new party.”  ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 191 (8th Cir. 1995) 7 C. Wright & A. Miller, Federal Practice & Procedure § 1958 (3d ed. 2025) (explaining Federal Rule 25(c) “does not require that anything be done after an interest has been transferred”).  Accordingly, to the extent there was a transfer of interest, the action could continue in plaintiff’s name, unless upon motion the court required otherwise.

Rule 41

 

The court did not rely on Rule 25 in dismissing the action, however.  Rather, it dismissed the case and vacated the foreclosure judgment for failure to prosecute because plaintiff failed to comply with the court’s August 2024 order to prove, after a hearing, who the real party in interest was.  Although it did not cite the rule, the court was plainly referring to Civil Rule 41(b)(2).

 

Rule 41(b)(2) provides: “For failure of the plaintiff to prosecute or to comply with [the Vermont Rules of Civil Procedure] or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.”

This “general power” of the court to dismiss a case for want of prosecution “is limited by several important considerations” including that “the law favors disposition of cases on their merits,” that “sanctions against litigants should be proportionate to their offenses” and “appropriate to the circumstances,” and that “courts must be wary of imposing sanctions on a party without notice and an opportunity to be heard.”  Ying Ji, 2013 VT 81, ¶¶ 6-7 (quotation omitted); cf. John v. Med. Ctr. Hosp. of Vt., Inc., 136 Vt. 517, 519 (1978) (requiring “findings . . . that 10 there has been bad faith or deliberate and willful disregard for the court’s orders, and . . . the party seeking the sanction has been prejudiced thereby” for “the ultimate sanction of dismissal” under Civil Rule 37(b)(2)). 

Under the similar federal rule, courts recognize that dismissal for lack of prosecution “is a harsh remedy to be utilized only in extreme situations.”  Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)

  

We agree with plaintiff that there was no failure on its part to prosecute the case, and thus, conclude the court exceeded its discretion by dismissing the case with prejudice

Here, the trial court made no findings that plaintiff failed to pursue the case, caused undue delay, or demonstrated continued noncompliance with the court’s orders.  Nor does the record demonstrate inaction by plaintiff such as failure to attend a hearing or respond to repeated requests from the court, or that plaintiff unreasonably delayed its response to the court’s order to prove the identity of the real party in interest. Plaintiff attended the hearing and complied with the court’s order to provide proof of the real party in interest, although the court was unpersuaded.  The court therefore exceeded its discretion by dismissing the case with prejudice for plaintiff’s failure to comply with the court’s order.

 

Reversed.  The judgment of foreclosure is reinstated, and the matter is remanded for further proceedings consistent with this opinion.

 

COHEN, J., dissenting.   I cannot agree with the majority that the trial court abused its discretion in dismissing this foreclosure proceeding.  Plaintiff’s incompetent recordkeeping, its shifting representations to the trial court, its sale of a mortgage and note that it now claims no longer legally exist, and its failure to provide adequate proof that it was the party entitled to enforce the foreclosure judgment, together support the sanction of dismissal here.  Accordingly, I dissent.  

 

What the trial court described as dismissal for failure to prosecute can be viewed as dismissal for failure to comply with the court’s July 2024 order directing plaintiff to provide proof that plaintiff was the entity that owned the right to enforce the judgment.  See V.R.C.P. 41(b)(2).

 

The facts of this case justify the court’s decision. Plaintiff was on notice that it faced dismissal if it did not demonstrate that it owned the right to enforce the foreclosure judgment, yet it did not seriously address the trial court’s concerns.  Plaintiff’s failure to adequately respond to the court’s order, coupled with its slipshod recordkeeping and its sale of a mortgage and note that it now claims no longer exists—which undoubtedly caused real confusion and anxiety for the pro 15 se defendant here—lead me to conclude that the court acted within its discretion in dismissing the action.

 

The sanction of dismissal with prejudice was not disproportionate to the actions and inaction that caused it.  Dismissal under these circumstances would serve both as a penalty and an important deterrent to future similar conduct by foreclosure plaintiffs.  See  John v. Med. Ctr. Hosp. of Vt., Inc., 136 Vt. 517, 520 (1978) (noting that sanction of dismissal is sometimes warranted, and can serve “not only as a penalty, but as a deterrent as well”)

 

For that reason, I would affirm the trial court’s decision.

How cited

 

SCOVT reverses denial of post- judgment motion to reopen case for leave to file a second amended complaint, holding as a matter of first impression that curing a pleading deficiency is a possible basis for relief under Rule 59(e) (following Foman v. Davis, 371 U.S. 178 (1962).)

  

Stowe Aviation, LLC v. Agency of Commerce, 2024 VT 11 [February 23, 2024]

CARROLL, J. Plaintiffs appeal from an order denying their motion to reopen this breach-of-contract case and for leave to file a second amended complaint. Plaintiffs assert that Rule 59(e) is a viable means to reopen the pleadings, and the trial court abused its discretion in denying relief under that rule. We agree that plaintiffs can potentially obtain Rule 59(e) relief, and therefore reverse the order denying plaintiffs' Rule 59(e) motion and remand for further proceedings to evaluate plaintiffs' request to replead consistent with this opinion.

Plaintiffs complained in count one that they executed an MOU with defendant based on its representations that it provided "gold standard" oversight of EB-5 projects, when in fact a significant fraud had been perpetrated on its watch. In count two, plaintiffs alleged that defendant’s misrepresentations about its oversight of other EB-5 projects breached the implied covenant of good faith and fair dealing.

The trial court granted defendant's motion to dismiss for failure to state a claim on both counts. It concluded that the MOU did not contain any provision promising oversight of the Jay Peak projects for the benefit of plaintiffs. The court found the claim of breach of the implied covenant of good faith and fair dealing arising from the same allegations suffered from the same deficiency. The court did find that plaintiffs had alleged a separate basis for a breach-of-contract claim but did not, however, adequately plead damages related to this alleged breach, and therefore failed to state a claim. The court dismissed the complaint pursuant to Vermont Rule of Procedure 41(b) and closed the case the same day.

Plaintiffs moved under Vermont Rule of Civil Procedure 15 to amend the complaint in response to the court's identification of a potential basis for plaintiffs' two claims. The defendant opposed the motion, arguing ,because the court had closed the case, plaintiffs had to first move the court to reopen or vacate judgment under Vermont Rules of Civil Procedure 59 or 60. Plaintiffs then timely filed a restyled motion seeking relief under either Rule 59 or 60, and submitted a proposed second amended complaint attempting to cure the deficiencies the court identified in its final order.

The court concluded that for plaintiffs to prevail under Rule 59(e), the court had to have made a mistake, not plaintiffs. It found that plaintiffs' failure to request leave to amend was not a fault or mistake of the court, but of plaintiffs. It found that the proposed second amended complaint contained new arguments that plaintiffs could have pleaded before it closed the case. It concluded that it had not made a clerical mistake in failing to sua sponte grant leave to amend. The court accordingly denied the motion. Plaintiffs appealed this order.

The first question presented is whether plaintiffs can prevail on a Rule 59(e) motion to replead where plaintiffs did not seek leave to amend their complaint prior to the court's merits decision and where the court dismissed with prejudice and closed the case. We have never addressed whether the court's power includes granting Rule 59(e) relief to cure a pleading deficiency.

In Mitec, we held that the right to amend provided by Rule 15 no longer attached after entry of judgment.  N. Sec. Ins. Co. v. Mitec Electronics, Ltd.,   2008 VT 96, ¶ 39. And while we ultimately reversed the post-judgment grant of leave to amend in Mitec, our decision was based on the specific facts of that case, and we did not express or imply that the rules never allow repleading after the court closes the case or enters judgment.

We are persuaded that curing a pleading deficiency is a possible basis for relief under Rule 59(e). Relief to amend pleadings under Rule 59(e)  is available in most if not all the federal circuits. As we noted in Equinox, "[f]reedom of amendment is a fundamental principle of our rules." State v. Equinox House, Inc.,  134 Vt. 59 , 62 (1975); see also Foman v. Davis, 371 U.S. 178, 181-82 (1962)  (stating that Rule 59 motion to amend should have been granted because purpose of civil rules, including Rule 15, is that "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits").

In Williams v. Citigroup Inc. , 659 F.3d 208 (2d Cir. 2011) (per curiam), the Second Circuit encountered facts similar to the present dispute. There, the district court dismissed the plaintiff's complaint and entered final judgment the following day. The plaintiff timely moved to reopen the judgment and sought leave to cure defects in the original complaint that the court identified in its dismissal order. The Second Circuit reversed, concluding that the court abused its discretion in denying the motion for reconsideration. The court held that the U.S. Supreme Court in Foman makes unmistakably clear there is no such rule requiring litigants to request leave to amend with their opposition papers or to do so before the court enters judgment.

We similarly hold that the trial court's denial of plaintiffs' motion in this case was an abuse of discretion. The court's conclusion that relief was unavailable because plaintiffs should have requested leave to amend in their opposition papers cannot be squared with Equinox, Mitec, or the federal cases addressing the topic including Foman. The rules do not require it.

 On remand, plaintiffs must first convince the court to reopen the case under Rule 59(e) before they can file their second amended complaint. The standard to prevail on a Rule 59(e) motion in this context is more exacting, because the presumption to grant leave to amend under Rule 15 "disappears after judgment has been entered."  Plaintiffs must demonstrate one of the "four basic grounds" for granting a Rule 59 motion. Mitec,  2008 VT 96, ¶ 42.*

 If plaintiffs sufficiently demonstrate a basis for relief under Rule 59(e), the inquiry proceeds to whether plaintiffs' second amended complaint meets the ordinary Rule 15 standard. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4 (identifying factors to evaluate whether to allow party to amend pleadings under Rule 15 including undue delay, bad faith, futility, and prejudice); Bevins v. King, 143 Vt. 252, 254-56(1983). Plaintiffs can only file their second amended complaint if they prevail on both Rule 59(e) and Rule 15 standards.

The order denying plaintiffs' post-judgment motion for reconsideration is reversed, and the matter is remanded for further proceedings consistent with this opinion.

How cited

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SCOVT Note: This was a second amended complaint. Rule 15(a) allows a party to  amend a pleading once as a matter of course “at any time before a responsive pleading is served.” The Court has held a  trial court's proper course of action when granting a Rule 12(b) motion to dismiss prior to the service of a responsive pleading is to dismiss with leave to amend.  Neal v. Brockway, 136 Vt. 119, 122, 385 A.2d 1069, 1070 (1978) (reversing dismissal of complaint for failure to state claim without affording party opportunity to amend of  right). 

In the cited case of Foman v. Davis, 371 U.S. 178 (1962) the U.S. Supreme Court held the Court of Appeals erred in affirming a District Court's denial, without any apparent reason, of petitioner's motion to vacate the judgment in order to allow amendment of the complaint to plead a new legal theory based on the same transaction. See also  Perkins  v. Windsor Hospital Corp., 145 Vt. 305, 313 (1982) (stating that a motion to amend should not be denied simply “because it stated a new cause of action.”)

Here is Justice Marshall in Foman:

 As appears from the record, the amendment would have done no more than state an alternative theory for recovery.

Rule 15 (a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded . . . If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be "freely given."

 Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

371 U.S. at 182. 

More recently, the  U. S. Supreme Court has held is its unnecessary for a "short and plain statement of a claim" to provide a legal theory. Skinner v. Switzer, 562 US 521 (2011)  (under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory. Rule 8(a)(2) requires only a plausible "short and plain" statement of the plaintiff's claim, not an exposition of his legal argument.); Johnson v. City of Shelby, 574 US 10 ( 2014) ( the Rules do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted). 

*The ""four basic grounds" for granting a Rule 59 motion" referred to in Mitec, are from Wright & Miller:

First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based.  

Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence.

Third, the motion will be granted if necessary to prevent manifest injustice.

Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

 11 Fed. Prac. & Proc. Civ. § 2810.1 (3d ed.)

” 

SC0VT affirms summary judgment dismissing FEPA, contract and promissory estoppel claims by employee fired for lying, holding FEPA protections apply only to governmental investigations, that handbook by its terms did not create a contract, and that employee did not have evidence of a “specific” promise needed to support promissory estoppel claim.

 

Westcott v. Mack Molding, Co. , 2024 VT 85 [12/20/2024]

WAPLES, J.   Employee Paul Westcott surreptitiously recorded conversations at work and employer Mack Molding Co., Inc. fired him for lying about it.  Employee sued employer.  The trial court concluded at summary judgment that employee’s recording activities were not protected by Vermont’s Fair Employment Practices Act (FEPA) or Worker’s Compensation Act (WCA).  The trial court further concluded that employee could not sustain his breach-of-contract or promissory-estoppel claims.  We affirm.

 

FEPA and WCA Retaliation Claims

 

Employee does not dispute that employer terminated him for lying.  However, he contends that lying in support of a protected activity is itself protected activity. 

Assuming arguendo that being fired for lying about a protected activity would make the firing improper, we first consider whether his covert recording of workplace conversations is protected by the FEPA or the WCA, which incorporates by reference the provisions against retaliation under the FEPA.  21 V.S.A. § 710(f)

 

 The FEPA provides, in relevant part: “An employer . . . shall not discharge . . . any employee because the employee: . . .  (b) has lodged a complaint or has testified, assisted, or participated in any manner with the Attorney General, a State’s Attorney, the Department of Labor, or the Human Rights Commission in an investigation of prohibited acts or practices;   (c) is known by the employer to be about to . . . testify, assist, or participate in any manner in an investigation of prohibited acts or practices.}21 VSA § 495(a)(8).

 

Employee points us to a dictionary definition of the word “investigation” and argues that employee’s actions fall into it.  Employer instead argues that “investigation” means an investigation by the “Attorney General, a State’s Attorney, the Department of Labor, or the Human Rights Commission,” as specified in 21 VSA § 495(a)(8)(B). 

 

We think employer’s interpretation is correct. The Legislature intended the “investigation” referred to in subdivision (c) to mean the sort of investigation it defines immediately beforehand.  Because employee does not contend that his actions were in any way related to a government investigation as described in subdivision (b), his covert recording does not fall within the scope of the FEPA’s participation clause.

Similarly, employee’s actions do not fall within the scope of the WCA’s protections against retaliation. 21 V.S.A. § 710(d).

 

Breach of Contract

  Employee contends that employer breached a contract with him, created by the employee handbook 

 

Within the disciplinary process section, the handbook expressly provides that employees “should not assume that any or all of the steps outlined below will be followed in every situation” and that the stated “process does not create a binding obligation to follow these steps in every situation.” 

 

 The situation created by the handbook here is not like that of Dillon v. Champion Jogbra, Inc., 175 Vt. 1, ¶ 15, where despite an “at will” disclaimer, the disciplinary policy “require[d] management” to follow certain steps in the process -- a “promise for . . . specific treatment in a specific situation” because here the handbook stated that “the Company expressly reserves the right to terminate the employment relationship at will” and the handbook did not make any promises modifying that status.

 

Promissory Estoppel   

 

Employee argues that he “had a legitimate expectation that he would be permitted to return to work” after his period of short-term disability because of statements made by, the human resources directo in a letter explaining his disability benefits, providing: “[i]f you . . . recover after you have used 12 weeks of FMLA but before the maximum benefit (time away from work) of twenty-six (26) weeks is exhausted, you will still be considered” an employee and will “be reinstated to the first available position for which you are qualified.”

To sustain a promissory estoppel claim, employee must “[1] demonstrate that the termination was in breach of a specific promise made by the employer, [2] that the employer should have reasonably expected to induce detrimental reliance on the part of the employee, and [3] that the employee did in fact detrimentally rely on the promise.”  Dillon v. Champion Jogbra, Inc., 175 Vt. 1, ¶ 19 (2002). 

 

Even if we viewed this statement as a promise, employee’s termination was not “in breach of a specific promise made by the employer”.  Employee was merely promised that he would be able to return to “the first available position” not that the employer would refrain from terminating his employment for any other reasons.

Affirmed.

 How cited

SCOVT affirms summary judgment dismissing FEPA and promissory estoppel claims for lack of evidence, refusing to consider any supporting facts not presented by plaintiff in a required Rule 56 “statement of additional facts”.

 Caldwell v.Champlain College Inc., 2025 VT 17 [4/11/2025]

WAPLES, J.   Employee Robert Caldwell contends that the trial court erred in granting summary judgment on his Fair Employment Practices Act (FEPA) disability discrimination and promissory-estoppel claims against his former employer Champlain College because genuine issues of material fact precluded summary judgment.  We affirm. 

In opposing Champlain’s motion for summary judgment, employee did not file his own statement of additional material facts.  A separate statement of material facts has been required by Rule 56 since at least 1995, and amendments to the rule in 2003 made clear that attorneys must include “in their Rule 56(c)(2) statements all of the facts that they have relied on ... [because] facts that are omitted from their statements will not be considered by the court in ruling on the motion.” Reporter's Notes—2003 Amendment, V.R.C.P. 56; see also Reporter's Notes—1995 Amendment, V.R.C.P. 56. The 2022 Amendments also explicitly clarify that “statements of additional facts ... are to be submitted in a separate statement, with numbered paragraphs.” Reporter's Notes—2022 Amendment, V.R.C.P. 56.

 

Employee’s failure to file a statement of additional material facts means the Court need not consider any facts outside of Champlain’s statement of undisputed material facts in ruling on the summary judgment motion.  V.R.C.P. 56(c)(5). Unless otherwise noted, all facts presented in the analysis below are facts that employee did not dispute in his response to Champlain’s statement of undisputed material facts.

 

Without direct evidence of unlawful discrimination, which employee has not offered, we apply the three-step framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Hammond, 2023 VT 31, ¶ 25. Assuming that employee can establish a prima facie case of discrimination, the burden shifts to Champlain to articulate a “legitimate, nondiscriminatory reason for the challenged conduct.”  Hammond, 2023 VT 31, ¶ 25 (quotation omitted).  Champlain’s explanation that employee was being fired “based on [his] fundraising number.”  suffices to meet Champlain’s burden. Employee thus must show that the “proffered reason was a mere pretext for discrimination.”  Id

 

Employee offered no evidence to raise even the barest suggestion that Champlain’s decision to terminate him was not for exactly the reasons it stated: employee, who was chief fundraiser, failed to meet his fundraising expectations.  Summary judgment was warranted because employee bore the burden of proof to show that Champlain’s reason for termination was pretextual, and he failed to make a showing sufficient to establish the existence of this element essential to  his case.

 

To establish his promissory estoppel claim, employee must “demonstrate that the termination was in breach of a specific promise made by the employer that the employer should have reasonably expected to induce detrimental reliance on the part of the employee, and that the employee did in fact detrimentally rely on the promise.”  Dillon v. Champion Jogbra, Inc.175 Vt. 1, 9, (2002).  “ ‘Courts have generally required a promise of a specific and definite nature before holding an employer bound by it.’ ”  Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶ 13, 214 Vt. 269, 256 A.3d 604 (quoting Dillon, 175 Vt. at 10, 819 A.2d at 710).  A mere “ ‘expression of intention, hope, desire, or opinion, which shows no real commitment’ ” does not suffice.  Id. (quoting Nelson v. Town of St. Johnsbury Selectboard, 2015 VT 5, ¶ 56, 198 Vt. 277, 115 A.3d 423).  ¶ 27. Employee cites no evidence at all in support of his promissory estoppel claim.  His brief in opposition to summary judgment before the trial court similarly cited no evidence.  Because employee did not introduce evidence of any promise, much less one “of a specific and definite nature,” his claim for promissory estoppel fails.

Affirmed.

How cited