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.

Dismissal for failure to prosecute is an adjudication on the merits. Court will not override settled procedural rules to prevent a windfall.

Deutsche Bank v. Pinette, 2016 VT 71 (filed June 24, 2016)

DOOLEY, J. Lender appeals from a decision that dismissed lender's claims for mortgage foreclosure and a deficiency judgment on the ground that they were barred by claim preclusion, as lender had previously instituted an identical action against borrower in 2013, which had been dismissed for failure to prosecute. On appeal, lender argues that because the 2013 action did not actually adjudge the enforceability of the note and mortgage, the dismissal did not have preclusive effect. We affirm.

Under Rule 41(b)(1)(ii), a court may, by its own motion, dismiss any action where "all parties against whom a judgment for affirmative relief is sought have failed to plead or otherwise defend as provided by these rules and the lender has failed to request or apply for a default judgment within six months of the filing of the action." Rule 41(b)(3) states that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits." The plain language of Rule 41(b) is therefore exceedingly clear—by its express terms, unless a trial court specifically says otherwise in its order, a dismissal predicated on a lender's failure to seek a default judgment operates as an adjudication on the merits.

That dismissal was with prejudice is explicitly part of Rule 41, and lender was on notice of it.

Lender argues that barring subsequent foreclosure actions in cases like those at bar would result in a "significant and unjustified windfall” for mortgagors. The consequence of a procedural default is usually a windfall to the other side. While borrower in this instance is enriched, and has kept a benefit he would otherwise be bound to relinquish, we cannot override settled procedural rules, essential to the swift and efficient administration of justice, in order to force a contrary result. See In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 21, 188 Vt. 262, 6 A.3d 713 ("[P]rocedural rules are devices to ensure fairness, uniformity and regularity of treatment to all litigants appearing before the courts, and to be meaningful, they must be enforced" (citation omitted)); Bloomer v. Gibson, 2006 VT 104, ¶ 14, 180 Vt. 397, 912 A.2d 424 ("The court does not abuse its discretion where it enforces the rules of civil procedure equitably, even against a pro se litigant." (emphasis added)).

Lender had numerous opportunities to avoid the "windfall" created by the dismissal with prejudice, either by moving for default judgment, appealing the dismissal or moving to reopen the dismissal. It would have been in a stronger position if the third complaint, the one in this case, reflected the earlier dismissal and the requested consequences of that dismissal; instead its filing of the virtually identical complaint in each action transmits a message that it expected no consequences from its default. The trial court acted well within the law, and we must uphold its decision.

Affirmed.

SCOVT NOTE: The rule announced in Pinette, that in mortgage foreclosure actions 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, is retroactive to pending cases. See Deutsche Bank National Trust Co, v. Watts, 2017 VT 57.

Compare Ditech Financial LLC v. Brisson, 2025 VT 54 (reversing, as abuse of discretion, dismissal of foreclosure action for failure to prosecute in the name of the real party in interest)

Claim preclusion; subject matter jurisdiction. Gravel-extraction activities violated an Act 250 permit. Court had jurisdiction to enforce expired permit

Natural Resources Board Land Use Panel v. Dorr, 2015 VT 1(09-Jan-2015)

MORSE, J. (Ret.), Specially Assigned.  This is an appeal from a judgment of the Superior Court, Environmental Division affirming an administrative finding of the Natural Resources Board that respondents’ gravel-extraction activities violated an Act 250 residential-subdivision permit. Respondents contend the enforcement action and trial court judgment were based on an expired Act 250 permit, and therefore invalid. We affirm.

The claim that Act 250 permit had expired either by its terms or by operation of law—was one that could and should have been raised in earlier administrative and judicial proceedings between the parties. Accordingly, we conclude that the claim is barred.by principles of res judicata.

Respondents further assert that—res judicata notwithstanding—if the permit had expired then the courts were without subject matter jurisdiction over this Act 250 enforcement action, “Subject matter jurisdiction” refers to the fundamental “power of a court to hear and determine a general class or category of cases.” It is a concept easy to confuse with the simple authority to act, and we have, accordingly, been careful to limit the concept in Act 250 and other administrative contexts, where the agency generally exercises limited powers and “virtually any disagreement with its actions can be phrased in jurisdictional terms.” This is not a case where the parties fundamentally “failed to adjudicate the case in the proper statutorily designated administrative tribunal before proceeding to the superior court.” Brace v. Vergennes Auto, Inc., 2009 VT 49, ¶ 16, 186 Vt. 542, 978 A.2d 441 (mem.). Accordingly, we find no reason to exempt respondents’ claim from the general claim-preclusion rules, and affirm the judgment on this basis.


How cited.