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.  

SCOVT affirms partition order that did not physically divide property, rejects objection that infeasibility of zoning permit was not a lawful consideration.

  Wells  v. Spera, 2023 VT 18   

           

CARROLL, J. Plaintiffs appeal a civil-division order assigning real property to defendant in this partition action. We affirm.

Plaintiffs argue that the failure to divide the property offends the long-standing preference to order partition in kind over assignment or sale, and that the decision not to divide because of potential zoning violations exceeded the scope of the commissioners’ authority set out in the reference order.

 

Partition actions are governed by statute, 12 V.S.A. §§ 5161-5188, and Civil Rule 53. Under this framework, once the trial court determines partition is appropriate, it appoints three commissioners who reside in the same county as the subject property and who “shall make partition of the estate,” 12 V.S.A. § 5169(a), unless it “cannot be divided without great inconvenience to the parties.” Id. § 5174. If the property cannot be divided without great inconvenience, the “court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.” Id. § 5174. Only if no party will take an assignment may courts order the sale of a property. Id. § 5175. Following receipt of the commissioners’ report, the trial court must accept it “[u]nless cause is shown.” Id. § 5172.

 The court issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report.

 The commissioners credited defendant’s testimony that division would result in an overall value of $1,300,000, which was $200,000 less than the $1,500,000 combined value and concluded that “given the serious zoning hurdles,” the property could not “be physically divided without great inconvenience to the parties because doing so has the very real potential to materially decrease or perhaps even extinguish the property’s value.” They awarded defendant first option to buy out plaintiffs’ interest. 

 Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii), arguing the commissioners erred as a matter of law.  in concluding that partition would result in zoning violations. In the alternative, they argued that the equities favored assigning the property to them.

The court denied the motion and adopted the report without qualification. It reasoned those plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). The court found that the commissioners had acted within the scope of their mandate as described in the reference order and that the record supported their findings and conclusions.

 In contrast to plaintiffs’ characterization, the issue is not whether the commissioners concluded partition in kind was inequitable purely because division would create zoning violations; instead, the question here is whether the commissioners can consider potential zoning violations to determine whether physical division would materially decrease the property’s value. See Billings v. Billings, 114 Vt. 70, 74, 39 A.2d 748, 750 (1944) (explaining that great-inconvenience-to-parties test is whether “the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person”). 

The commissioners’ findings regarding potential zoning violations, among other findings, supported their conclusion that division would materially decrease the property’s value. The record supports their findings, and the findings support their conclusion not to divide the property. It follows that the trial court did not err in accepting this portion of the report. See Messier, 140 Vt. at 314, 438 A.2d at 400

 Plaintiffs’ next argue that the commissioners erred by giving defendant first right of assignment, improperly considering the parties’ ability to buy out the other in making this determination.  As in Nystrom v. Hafford, the findings about the parties’ relative abilities to timely buy out each other’s interests are appropriate equitable considerations. 2012 VT 60, ¶ 17

 Because. the challenged findings are not clearly erroneous, we need not and do not address whether Rule 53(e)(2) permits a party to object to a report following the report’s delivery to the trial court where the party did not reserve a right to object in the first instance.

Finally, plaintiffs request a remand to redetermine the property’s value because of purported changes in the real-estate market. Plaintiffs fail to cite where this argument was preserved and cite no case or other legal authority in support. Accordingly, we will not review it. V.R.A.P. 28(a)(4)(A) (requiring litigant to demonstrate how issues were preserved and to support argument with citations to authorities and parts of record relied upon); see Kneebinding, Inc. v. Howell, 2020 VT 99, ¶ 61, 213 Vt. 598, 251 A.3d 13 (Mere naked statements, unsupported by argument or citation of authorities, constitute inadequate briefing and merit no consideration.)

 Affirmed.

How cited

Divided Court rules a moot appeal of health insurance rates can not be decided as a case “capable of repetition yet evading review.”

 

In re Blue Cross and Blue Shield 2022 Individual & Small Group Market Filing, 2022 VT 53 (filed 11/4/2022)

CARROLL, J. Blue Cross Blue Shield of Vermont (Blue Cross) appeals from the Green Mountain Care Board’s (GMCB) decision modifying its proposed health-insurance rates for 2022. The case is moot because health-insurance rates for 2022 cannot now be changed. Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case. We affirm.

We have recognized the mootness exception for cases that are capable of repetition yet evading review. The exception applies when two conditions are met: (1) “the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and [(2)] there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Price v. Town of Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26.

In considering the first prong, “we have examined whether, in the future, the complaining party ‘would not be able to challenge [the action] effectively.’ ” In re Vt. Dep’t of Pub. Serv. (Vermont Yankee), 2008 VT 89, ¶ 11, 184 Vt. 613, 959 A.2d 564 (mem.) (quoting Hunters, Anglers & Trappers Ass’n of Vt., 2006 VT 82, ¶ 16); see also Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018) (per curiam) (“The question . . . [is] whether the underlying action is almost certain to run its course before . . . the [court] can give the case full consideration.” (quotation omitted)).

If a litigant “could have taken actions to expedite the appellate process” but did not, the matter does not fit within this exception. State v. Rooney, 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481 (mem.); see Paige v. State, 2017 VT 54, ¶¶ 4 n.*, 9, 205 Vt. 287, 171 A.3d 1011 (explaining that appellant filed motions to extend time to file main brief and reply brief and waited until long after event mooting appeal before requesting oral argument from Supreme Court); Hamamoto, 881 F.3d at 723 (concluding capable-of-repetition-but-evading-review exception was not met in case where plaintiffs did “not demonstrate[] that expedited review would have been unavailable”).

We have not established a firm period of time that is “too short” to allow judicial review, though our cases draw broad parameters. In State v. Rooney we held that less than four months was sufficient time to complete appellate review. 2008 VT 102, ¶ 12 In Vermont Yankee, we held that ten months was sufficient time to complete appellate review. 2008 VT 89, ¶ 11. However, in Price, we applied this exception where the statutes at issue created a ninety-day window to review the challenged action at both the trial and appellate levels. 2011 VT 48, ¶¶ 24-25. We also applied the exception to a six-month window for judicial review at both trial and appellate levels. In re Durkee, 2017 VT 49, ¶¶ 10-13, 205 Vt. 11, 171 A.3d 33.

In this case, the Department of Vermont Health Access (DVHA) apparently required Blue Cross to provide its final approved rates eleven days after GMCB’s August 5 approval so that it could review and certify the health insurance plans, incorporate final plan information into brochures and comparison tools, and then update, populate, and test the online exchange system in time for customers to browse plans by October 15. However, it is not clear from the record which of these events may constitute a firm deadline, if any, for completion of appellate review. Blue Cross never alerted the Court to the matter’s expedient nature. if it had immediately appealed the GMCB’s August 5 decision and requested an expedited timeline under Rule 2, the Court most likely would have had sufficient time to decide the appeal. The ten weeks which elapsed between August 5 and October 18 was enough to complete appellate review.

To prevail the second prong, Blue Cross must “show that there is a reasonable expectation” that it “will be subjected to the same action again.” The circumstances surrounding the pandemic were, as Blue Cross concedes, “extraordinary,” resulting in a “year like no other.” Accordingly, Blue Cross simply cannot demonstrate that it is more than a “theoretical possibility” it “will become embroiled again in this same situation.” Even if this case did not evade review it is also not capable of repetition.

Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case.

COHEN, J., dissenting. I agree that this matter is technically moot because Blue Cross’s 2022 rates can no longer be changed, but I disagree with the majority’s conclusion that this case does not meet the mootness exception for matters capable of repetition but evading review.

Assuming for the sake of argument that Blue Cross should have foregone reconsideration, the review period began on August 5, 2021, when the GMCB issued its initial decision. This appeal became effectively moot on August 16—when the DVHA required insurers to provide their final rates—or very shortly thereafter.  Insofar as the majority is suggesting that appeals from the GMCB could be briefed, argued, and decided in a couple of weeks or less, and that this timetable should be the new bar for satisfying the evading-review prong, I disagree.

Because the timeline for health-insurance-rate regulation and administration remains essentially the same year to year, this case inherently evades review The fact that Blue Cross did not take steps to expedite its appeal should not be relevant because there would have been insufficient time for review even if the appeal were expedited as much as possible. The first prong of the mootness exception is met.

There is also “a reasonable expectation that [Blue Cross] will be subjected to the same action again,” and thus the second element of the mootness exception is met here. Blue Cross has presented a discrete legal question regarding a criterion that the GMCB is legally obligated to consider in every annual-rate review: whether the GMCB misinterpreted the term “excessive.” Nowhere does the GMCB claim that its interpretation of the term “excessive” depended on the pandemic’s extraordinary factual circumstances. In other words, the GMCB does not contend that the way it applied “excessive” was a one-time anomaly justified by the pandemic. Instead, the GMCB argues that , properly interpreted, its governing rules and statutes require it to consider nonactuarial evidence in determining whether a proposed rate is excessive. This legal position would be relevant in any rate year. Though the specific facts will change year to  year, our case law compels us to reach the merits of this appeal. Blue Cross has presented a novel legal issue that is nearly certain to affect future rate proceedings.

Because in my view the majority opinion effectively forecloses appellate review of a recurring issue, I respectfully dissent. I am authorized to state that Chief Justice Reiber joins this dissent.

 

Appeals. Attorney's fees. SCOVT vacates civil division order in attempted appeal from a probate order that was not appealable because question of attorney’s fees remained to be decided in probate court; Supreme Court has no jurisdiction where there was no jurisdiction below.

 In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)

CARROLL, J. Estate appeals the civil division’s order granting former guardian’s motion to dismiss a decision of the probate division. The probate division ordered guardian to reimburse his mother’s estate for what it described as damages incurred during his tenure as her financial guardian. However, the civil division did not have subject-matter jurisdiction because the probate division’s order was not a final order. Accordingly, we vacate the civil division’s order and remand to the probate division for further proceedings.

A necessary predicate for appellate jurisdiction is the order appealed from must be a final order. An order is final if the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court.

Here, the probate division in ordering reimbursement expressly did not issue a final judgment order, but provided that one would follow its final determination of fees and costs against the Guardian. It set a two-month schedule for the parties to produce evidence on the matter.

We have held that an appeal from an order that resolves attorney’s fees is an appeal from final judgment that brings up on appeal all d substantive issues in the case that were earlier decided. O’Rourke v. Lunde, 2014 VT 88, ¶¶ 13-15, 197 Vt. 360, 104 A.3d 92 (earlier order confirming an arbitration award was properly before the Court on appeal because the later order was “a final judgment [that] it resolved all issues in the case, including the amounts of attorney’s fees” ) Here the order appealed was not a final, appealable order because it expressly left issues to be decided before issuing a final judgment order; it did not dispose “of all matters that should or could” have been properly settled “at the time and in the proceeding then before the court.”

No exception applies. This Court has “frequently treated probate orders as final even where they did not dispose of the entire probate proceeding,” because the “proceedings are frequently lengthy and involve a series of decisions on discrete issues that may be appropriate for immediate review.” Palmer Trust, 2018 VT 134. Palmer held that a probate order that determined whether a particular individual 6 was an heir and beneficiary to a trust was a final, appealable order. Palmer and cases collect in Palmer are distinguishable. These cases Involved a “discreet issue[]”“ or ‘controlling, intermediate decisions’ that where immediate review could correct an error that “‘can harm later phases of the proceeding,’ ” No harm is done to any party by requiring the probate division to determine fees and costs and issue a final judgment order.

Subject-matter jurisdiction either exists or it does not, and where it does not, we must proceed no further. Vermont Rule of Appellate Procedure does not provide an alternative path to reach matters over which this Court has no subject-matter jurisdiction.

The order granting Thomas’s motion to dismiss is vacated and the matter is remanded to the probate division to determine reasonable attorney’s fees and costs and issue a final judgment order.

How cited

SCOVT NOTE Probate Rules 54 and 58, unlike the Vermont and federal civil rules, contain no provision expressly addressing the effect of a request for attroney’s fees on the appealability of a judgment on the merits. See VRCP 58(c) (“when a timely motion for attorneys' fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4 of the Vermont Rules of Appellate Procedure as a timely motion under Rule 59).

SCOVT dismisses appeal from non-final order requiring DCF to submit a new case plan.

In re C.P. & L.P., Juveniles 2019 VT 62 (mem) [filed 8/26/2019]

Juveniles C.P. and L.P. filed a notice of appeal of the family division’s order, following a permanency planning hearing, rejecting the parties’ proposed case plan that would have modified the original disposition order and requiring the Department for Children and Families (DCF) to submit a new case plan. We conclude that the order being appealed was not a final appealable order and therefore dismiss the appeal

The May 14 order was not a final appealable order because the  order did not modify the original disposition order. Nor did the court conclusively determine all matters before it at the permanency hearing. See In re D.D., 2013 VT 79, ¶ 22, 194 Vt. 508, 82 A.3d 1143 (“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.”). 

Rather, the court rejected DCF’s permanency recommendations, directed DCF to prepare and submit a new case plan, and set the matter for further hearing to review the new plan. Cf. In re G.B., Juvenile, 2019 VT 48, ¶ 9 (concluding that order denying petition to terminate mother’s parental rights was not final appealable order because, rather than finally resolving the status of mother’s parental rights, it directed DCF to prepare new case plan).

Under the particular circumstances of this case, the order being appealed was not a final order to which they had a right to appeal. Appeal dismissed.

How cited

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))

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

A defendant in a criminal action may seek interlocutory review under VRAP 5 without showing that a conditional guilty plea is not practicable or available before seeking such interlocutory review (overruling State v. Lyford, 2016 VT 118.),

State v.  Haynes, 2019 VT 44 [filed 6/28/2019]

PER CURIAM. Defendants move to reconsider this Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea.

In January 2019, this Court dismissed the interlocutory appeals quoting State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted “ ‘unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.’ ”

Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met.

In 1971 the Legislature amended § 2386 into separate subdivisions relating to civil and criminal cases. Subdivision (a) regarding civil actions provided that appeals before final judgment for questions of law “may be taken in such manner and under such conditions as the supreme court may by rule provide.” 1971, No. 185, § 57. Subdivision (b) maintained the existing language of the statute, providing that the trial court in its discretion and before final judgment may permit an appeal to be taken by the respondent or the state in a criminal cause.

Following the statutory amendment and the promulgation of Appellate Rule 5, three main themes have been consistent in this Court’s decisions regarding interlocutory appeals by defendants in criminal cases. First, review of denials of motions to suppress in criminal cases are interlocutory and not reviewed as of right until after final judgment. Second, denials of motions to suppress usually do not meet the criteria in  Appellate Rule 5. Id. Third, this Court has the authority to dismiss interlocutory appeals, even when certified by the trial court.

In 1989, Rule 11 of the Vermont Rules of Criminal Procedure was amended to authorize conditional guilty pleas. See V.R.Cr.P. 11(a)(2). The conditional guilty plea was designed to allow defendants who were not eligible to appeal through interlocutory means to get appellate review of pretrial motions without having to go through an entire trial. The Court continued to both grant and deny interlocutory appeals filed by defendants in criminal actions without reference to the availability of a conditional guilty plea.

Upon consideration, we overrule Lyford to the extent that it holds that a defendant is precluded from seeking interlocutory appeal through Appellate Rule 5 if a conditional guilty plea is available. 

 In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

An interlocutory appeal is appropriate where the order is a “controlling question of law about which there exists substantial ground for difference of opinion” and “an immediate appeal may materially advance the termination of the litigation.” V.R.A.P. 5(b)(1)(A), (B). Regardless of whether the trial court has determined that a case is appropriate for interlocutory appeal, this Court retains authority to dismiss an appeal if the trial court abused its discretion in allowing it.

We review the trial court’s decision to grant interlocutory appeal for an abuse of discretion.. Here, we do not have an explanation of the reasons that the trial court exercised its discretion. Although the court has discretion to allow an interlocutory appeal, it must provide at least some basis for this Court to determine how that discretion was exercised. Therefore, we dismiss the appeals to allow the trial court to issue a new decision providing the grounds for its decision on the motion for interlocutory appeal.

Upon reconsideration, the interlocutory appeals are dismissed without prejudice to defendants refiling after the trial court issues a decision. 

How cited

SCOVT NOTE.ON OVERRULING RECENT PRECEDENT

The Court has recognized the importance of the doctrine of stare decisis, and has noted that, although the Court is not "slavish adherents" to this doctrine, it does not "lightly overturn recent precedent," especially where the precedent could be changed easily by legislation at any time.  O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.)


State v. Haynes overrules a three-year-old case. But this is not a record. See Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (order being appealed need not be specified in the notice of appeal, overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking V.R.A.P 3(a) (an appeal from a judgment preserves all claims of error in the record)).

SCOVT dismisses appeal seeking advisory opinion.

In re Investigation into Programmatic Adjustments to the Standard-Offer Program,2018 VT 52 [filed 5/11/2018

REIBER, C.J. Appellant Renewable Energy Vermont (REV) asks this Court to reverse and remand an order of the Vermont Public Utility Commission1 that altered technology allocations in the standard-offer program for renewable energy projects. We conclude that REV seeks an advisory opinion and therefore dismiss the appeal for lack of jurisdiction.

“It is the tradition of constitutional common law that the establishment of legal doctrine derives from the decision of actual disputes, not from the giving of solicited legal advice in anticipation of issues.” Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977). In other words, “ ‘courts are not instituted to render advisory opinions.’ ” Baker v. Town of Goshen, 169 Vt. 145, 151, 730 A.2d 592, 596 (1999) (quoting In 8 re Constitutionality of House Bill 88, 115 Vt. at 529, 64 A.2d at 172). The issues raised by REV are premature, and we therefore lack jurisdiction to consider them. See id. at 152, 730 A.2d at 597 (dismissing appeal that sought impermissible advisory opinion).

After Supreme Court affirms a decision trial court is without subject matter jurisdiction in the absence of an express remand.

John Moyers v. Sheun Lai Poon and Brenda Lee Poon, 2018 VT 27 [filed 3/9/2018]

EATON, J. Following a decision from a three-justice panel of this Court issued on June 26, 2017, * involving these parties and this litigation and affirming a final judgment order, the civil division attempted to conduct further hearings as if the matter had been remanded. The Poons challenged continuation of the litigation by the trial court, asserting that, in the absence of an express remand from the Supreme Court in the June 26th decision, the trial court lacked subject matter jurisdiction to conduct further hearings. The trial court denied the motion and the Poons were granted permission by the Supreme Court to appeal the denial on an interlocutory basis. We reverse.

In the June 26th decision, this court affirmed the trial court’s decision in all respects except for the grant of injunctive relief, which was stricken. In all other respects, the judgment is affirmed.”). In the absence of a finding that the Poons had trespassed, we held there was no entitlement to an injunction. Id. at *5-6. The court did not remand the case to the trial court for determination of trespass. Id.

We have long recognized that unless a remand is ordered when the final judgment or decree is entered in the Supreme Court, the lower court is without jurisdiction to consider the case further. Turner v. Bragg, 114 Vt. 334, 336, 44 A.2d 548, 549 (1945). If Moyers felt a remand was necessary to consider the trespass claim, his remedy was to file for reargument seeking a remand to the trial court. He did not do so. To proceed as he did, by filing a motion in the trial court where there had been no remand, ignores the finality of Supreme Court decisions “It is the rule that a mandate or an order of remand is necessary to reinvest the lower court with jurisdiction to proceed with the case.” Sanders v. Loyd, 364 S.W.2d 369, 371 (Tenn. Ct. App. 1960). ¶ 10. trial court is without jurisdiction to consider the instant case further and the motion to dismiss for lack of subject matter jurisdiction should have been granted. The judgment rendered June 26th by this Court, which did not include a remand, was final.

SCOVT reverses summary judgment for defendant based on finding in earlier case, holding issue preclusion does not apply to a finding that was untested on appellate review.)

Daiello v. Town of Vernon, 2018 VT 17  [2/16/2018]

EATON, J. Plaintiff landowner, who built a residence on leased property owned by defendant, Town of Vernon, appeals the superior court’s order granting the Town summary judgment with respect to his claim that the Town breached a covenant of quiet enjoyment implied in the 1838 lease by not providing him access to the property. We reverse and remand for further proceedings.

The trial court granted the Town’s summary judgment motion, ruling that as a matter of law, the Town did not breach the covenant because the finding in Merritt v. Daiello that plaintiff had access to his property from the west precluded plaintiff from relitigating that fact.

In Merritt v. Daiello, plaintiff challenged on appeal the trial court’s finding of access to his property from the west, but this Court declined to review that finding because it upheld on different grounds the trial court’s conclusion that there was no easement by necessity. Commentators and courts alike have held that issue preclusion should be denied with respect to any finding that was untested on appellate review. See Restatement (Second) of Judgments § 27 cmt. o ("If the appellate court upholds one of the[] determinations [by the lower court] as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive [only] as to the first determination.")

Accordingly, plaintiff is not precluded in this proceeding from relitigating whether he has access to this property from the west.

The second preclusion question raised herein is whether the parties are precluded from relitigating in this case whether Stebbins Road was properly laid out by the Town The issue of whether the Town properly laid out Stebbins Road was raised in Merritt v. Daiello, determined by the superior court in the Merritts’ favor, and upheld on appeal. The Town is correct that because it was not a party in Merritt v. Daiello, it is not precluded from arguing that Stebbins Road was properly laid out as a public road.

On remand, if the court rules the Town properly laid out Stebbins Road and thus did not interfere with plaintiff’s access over that road this would result in two inconsistent judgments. By not joining the Town in their earlier action seeking to prevent plaintiff from accessing his property through their property based on a claim that the Town had failed to properly lay out the public road crossing their property, the Merritts ran the risk that issues resolved in that action would be subject to religitation in any later action involving the Town and themselves as indispensable parties.

SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.

In re Mathez Act 250 LU Permit, 2018 VT 55 [5/25/2018]

 REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal.  Tthe court granted summary judgment in favor of applicants and ordered the District Commission to vacate its decision to issue a second notice of the permit. . We affirm.

The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission  does no have open-ended authority to change a permit or an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

 An extension of time must be requested within thirty days of the initial period of appeal,  and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.

SCOVT reverses order dismissing zoning appeal as untimely, and remands to decide whether the exception under V.R.A.P. 4(c) applies because party did not receive notice of judgment.

In re Mahar, 2018 VT 20 [filed 2/15/2018]

EATON, J. Neighbors appeal the Environmental Division’s order dismissing as untimely their appeal to that court from a decision of the Town of Jericho Development Review Board (DRB) granting a conditional use permit.  Neighbors argue that the appeal was timely because they did not receive proper notice of either the hearing before the DRB or the resulting DRB decision. We conclude that at least some neighbors adequately raised a sufficient basis to reopen the appeal period and timely filed an appeal. Therefore, we reverse the dismissal and remand to the Environmental Division for resolution of the motion to reopen the appeal period and, if grounds are found, an adjudication on the merits of neighbors’ appeal.

Appeals to the Environmental Division from an act or decision of “an appropriate municipal panel pursuant to 24 V.S.A. §§ 4471, 4472” must be filed “within 30 days of the date of the act, decision, or jurisdictional opinion appealed from, unless the court extends the time.” V.R.E.C.P. 5(a)(1), (b)(1). The Environmental Division held that the appeal period does not begin to run until the individual seeking to appeal had constructive or actual notice of the municipal panel’s decision. This is not the correct legal standard. The appeal period is a single time period; it does not differ for each prospective appellant. The statute states that the appeal period is triggered by the date of the decision, not the date of notice. See V.R.C.P. 77(d) (explaining that lack of notice by clerk “does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal”)

To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal. Relevant to this case, under Vermont Rule of Appellate Procedure 4(c), the time for filing a notice of appeal can be reopened if:

            (1) the motion is filed within ninety days of entry of judgment or seven days of receipt of notice of judgment, whichever is earlier;

           (2) the court finds that a party entitled to notice did not receive it; and

           (3) no party would be prejudiced.

See V.R.E.C.P. 5(a)(2) (stating that appellate rules apply in appeals to Environmental Division). To reopen an appeal period under Appellate Rule 4(c), a litigant should make a motion with notice to all parties so that the court and the parties are aware of the basis on which the litigant seeks to appeal.

The undisputed facts establish that Harritt and Butler met the first two requirements of  Rule (c). The undisputed facts are insufficient to determine the final requirement—a demonstration that there is no prejudice to another party.

Prejudice to another party “‘means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal.’”. On remand, the Environmental Division must evaluate whether Rule 4(c)(3) was met.

We note that the trial court has discretion to deny a motion to reopen even where all of the requisite criteria are met. See V.R.A.P. 4(c) (stating that “court may, upon motion, reopen the time to file an appeal”)

SCOVT interprets zoning ordinance and permit conditions de novo, without deference to environmental court.

In re Confluence Behavioral Health, LLC. , .2017 VT 112 [filed 12/8/2017]

EATON, J. The Environmental Division approved the issuance of a conditional use permit for Confluence Behavioral Health, LLC’s proposed community therapeutic residence in Thetford. A group of neighbors appeal the decision. Neighbors contend that the Environmental Division improperly concluded that Confluence’s therapeutic community residence (the Project) was a health care facility, and thus was an allowed conditional use under the Thetford zoning ordinance. We affirm.

Applying our own statutory interpretation to the evidence, we affirm the Environmental Division’s determination that Confluence’s therapeutic community residence is a “health care facility” under the Thetford Zoning Bylaws and, as such, is an allowed conditional use in Thetford’s Rural Residential area.

We review zoning ordinances and municipal permit conditions according to the principles of statutory construction. Wagner & Guay, 2016 VT 96, ¶ 11. We approach the interpretation of such ordinances and permits as a legal question that we resolve without deference to the trial court. See In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 9, ___ Vt. ___, 143 A.3d 1086 (stating that this Court proceeds “with a nondeferential, on-the-record review” of issues of law and statutory interpretation); see also In re Jenness & Berrie, 2008 VT 117, ¶ 26, 185 Vt. 16, 968 A.2d 316 (“To the extent that the setback issues raises questions of law, our review is de novo.”).

To the extent that we have suggested otherwise in prior decisions, we overrule those statements We now overrule prior cases which afforded deference to the Environmental Division’s interpretation of a permit condition or a local zoning ordinance. Henceforth, we will review the Environmental Division’s interpretation of permit conditions and local zoning ordinances without deference.

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.)

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.

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.