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

_______

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.)

” 

SCOVT affirms Rule 12(b)(6)dismissal of fraud and negligent misrepresentation claims; as to fraud holding opinions and broken promises are not actionable and any misrepresentations of fact were not plead with the particularity required by Rule 9; as to negligent misrepresentation holding justifiable reliance was not adequately plead because no specific factual allegation supported the conclusory allegation that plaintiff took “reasonable steps to determine” the facts.

 Lynn v. Slang Worldwide, Inc. , 2025 VT 30 [June 13, 2025.]

EATON, J. Plaintiff Shayne Lynn appeals the trial court's dismissal of plaintiff's complaint for failure to state a claim. Plaintiff argues that his complaint, which alleges fraud and negligent misrepresentation by defendants, is sufficient to meet Vermont's pleading standards and that the trial court erred when it held otherwise. We affirm.

 

We will uphold a motion to dismiss for failure to state a claim only if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.  However, the Court is not required to accept conclusory allegations or legal conclusions masquerading as factual conclusions.

 

Fraudulent-Inducement Claim

 

To maintain a claim for fraudulent inducement, the plaintiff must show "an intentional misrepresentation of existing fact, affecting the essence of the transaction," where "the misrepresentation was false when made and known to be false by the maker, was not open to the defrauded party's knowledge, and was relied on by the defrauded party to his damage." Statements of opinion cannot be fraud unless the misrepresentation of opinion is part of a scheme to defraud. Promises to act in the future cannot constitute the requisite misrepresentation of existing fact unless there is a present intention to act contrary to the promise.

 

Plaintiff alleges that Miller and Driessen misrepresented that Slang was "financially sound," had a "bright economic future," and that its finances were "in excellent shape"; promised Slang would invest $18 million in High Fidelity; and provided  documents to plaintiff that were "intentionally and materially misleading" and "did not reflect that the company was about to fail."

 

Miller and Driessen's opinions about Slang's financial outlook were not actionable misrepresentations of material fact sufficient to create a claim of fraudulent inducement.

 

Miller and Driessen's alleged promise to invest in High Fidelity cannot support a fraud claim, absent an express allegation of present intent to renegotiate on the promise. See V.R.C.P. 9(b) (requiring allegations of fraud to be stated with particularity)

 

The general assertion that that Plaintiff was provided with misleading data is not pled with particularity. Sutton v. Vt. Reg'l Ctr., 2019 VT 71A, ¶ 73, ("Rule 9(b) requires that plaintiffs identify the particular statements . . . that they claim were fraudulent.")

 

Plaintiff argues that  opinion and broken promises can be the basis of a fraud claim if part of a scheme to defraud, citing  Winey v. William E. Dailey, Inc.,  161 Vt. 129,  133,  and  Fayette v. Ford Motor Credit Co.,  129 Vt. 505, 510 (1971).

 

 In cases where an opinion or a promise was sufficient to support a fraud claim, there was also a material misrepresentation of existing facts or a present intent not to follow through on the promise. See, e.g., Harponola Co. v. Wilson,  96 Vt. 427, 433-34 (1923 (considering promise in combination with "the original fraud" of factually misrepresenting product's value); Proctor Trust Co. v. Upper Valley Press, Inc., 137 Vt. 346, 351,   (1979)(considering opinions "which [plaintiffs] knew were extremely likely to turn out to be false" combined with income projections based on highly unreliable data which "closely resemble misrepresentations of existing fact"); Fayette,129 Vt. at 510, (considering promise combined with steps taken by defendant indicating no intention of following through on promise). Without such allegations here, plaintiff fails to state a claim for a fraudulent scheme.

 

Plaintiff's complaint is insufficient as a matter of law to support a claim of a scheme to defraud. None of the statements alleged by plaintiff are fraudulent misrepresentations of material fact. They are puffery, trade talk, and an unspecified allegation of misleading data. Plaintiff cannot create a fraudulent scheme by combining an unsubstantiated promise with puffery and a general allegation of misleading financial data. Plaintiff has failed to allege fraudulent inducement.

 

Negligent-Misrepresentation Claim

 

Justifiable reliance is a key aspect of a claim of negligent misrepresentation, and any complaint must plead facts that support such reliance. In McGee v. Vermont Federal Bank, FSB, we held that the plaintiffs did not state a claim for negligent misrepresentation because they failed to adequately allege justifiable reliance. 169 Vt. 529, 531(1999) (mem.). Specifically, "[no]owhere in the [plaintiff's] pleadings do they indicate that they could not verify the information" provided to them. Id. Similarly, in Burgess v. Lamoille Hous. P'ship,  we held that the plaintiff failed to demonstrate justifiable reliance where the evidence showed that there was relevant information readily available that demonstrated the falsity of the information provided by the defendant. 2016 VT 31, ¶ 23.

 

Plaintiff argues that he has sufficiently pled justifiable reliance for the purposes of the notice pleading standards by alleging that "the financial data made available to him was intentionally materially misleading," that "he took reasonable steps to determine the financial status of [Slang]," and that had he "known the true financial status of [Slang], he would never have agreed to merge with it."  Plaintiff's allegations that the documents and information were "false," not "true," and "misleading," and that plaintiff acted "reasonably" to ascertain their veracity are mere restatements of the legal elements required for a claim of negligent misrepresentation. Without specific factual allegations to support these conclusory statements, they are insufficient to prevent dismissal of his claim.

 

Furthermore, justifiable reliance requires both that the plaintiff is unaware of the truth and that the truth is "not within the knowledge of" the plaintiff.  Burgess, 2016 VT 31, ¶ 22  We decline to infer the missing element—that he was unable to learn Slang's real financial situation—into plaintiff's complaint. Plaintiff therefore failed to state a claim for negligent misrepresentation.

Affirmed.

How cited

SCOVT NOTE: In the view of the drafters of the current Restatement, "justifiable" reliance is no longer an element of a claim of negligent misrepresentation. The Third Restatement replaces the requirement that the plaintiff's reliance be “justifiable” with statement that the conventional rules of comparative responsibility apply. See Reporter's Note, Restatement (Third) of Torts: Liability for Economic Harm § 5 (2020). 

SCOVT, distinguishing LeClair v. LeClair, affirms discretionary denial of motion to amend complaint made before the close of discovery.

 

PeakCM, LLC v. Mountainview Metal Systems, LLC, 2025 VT 50 [8/22/2025] (part one of two)

EATON, J.  In 2019, multiple siding panels fell off a newly constructed hotel in St. Albans, Vermont.  Plaintiff, PeakCM, LLC, the general contractor responsible for the hotel’s construction, sued the siding-panel installer, Mountainview Metal Systems, LLC..  Plaintiff amended its complaint to add a product-liability claim against the siding-panel manufacturer, ATAS International, Inc. On appeal, plaintiff argues that the court abused its discretion when it denied plaintiff’s further motion to amend the complaint. We affirm.

Under Vermont Rule of Civil Procedure 15(a), once a responsive pleading is served, “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave to amend shall be freely given when justice so requires.”  We have stated that “trial courts are to be liberal in permitting amendments to the pleadings.”  Lillicrap v. Martin, 156 Vt. At 170 (citing V.R.C.P. 15(a)).

When a party moves to amend its pleading, the trial court has discretion to determine whether an amendment should be permitted.  Id.  On review, “[t]he issue is not whether we would have granted the motion to amend had we been similarly situated; nor is it whether the lower court could have granted the motion to amend in the proper exercise of its discretion.”  Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 47 Instead, “[w]e will reverse the action of the trial court on such rulings only where there is an abuse of discretion.”  Lillicrap v. Martin, 156 Vt. at 170.

 An abuse of discretion exists where a court “failed to exercise its discretion, or . . . its discretion was exercised on reasons clearly untenable, or to an extent clearly unreasonable.”  In re Burke, 2019 VT 28, ¶ 46.   When applying its discretion, the court should consider the policies behind our liberal amendment standard:  “(1) to provide maximum opportunity for each claim to be decided on its merits rather than on a procedural technicality, (2) to give notice of the nature of the claim or defense, and (3) to enable a party to assert matters that were overlooked or unknown to him at an earlier stage in the proceedings.”     

We have held that a trial court may deny a motion to amend based on considerations of undue delay, bad faith, futility of amendment, and prejudice to the opposing party. Colby v. Umbrella, Inc. 2008 VT 20, ¶ 4; Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313 (citing Foman v. Davis, 371 U.S 178, 182 (1962)).  

However, “[w]hen there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion.”  LeClair v. LeClair, 2017 VT 34, ¶ 28; Bevins v. King, 143 Vt. 252, 254-55 (1983) (citing Foman, 371 U.S. at 182). 

 

We conclude the court acted within its discretion in denying plaintiff’s motion to amend based on undue delay and prejudice to ATAS. After ATAS moved for summary judgment arguing that the economic-loss rule barred the product liability claims plaintiff moved to amend its complaint to add over 100 new allegations and four new claims against ATAS: breach of contract, breach of warranty, indemnity, and negligence. At that time, the discovery schedule was due to close six days later.

The record supports the court’s conclusion that there was undue delay because the new claims were based on facts and theories of which plaintiff had been aware since it originally filed its complaint against ATAS. See Hickory v. Morlang, 2005 VT 73, ¶ 6, 178 Vt. 604, 878 A.2d 318 (mem.) (Holding undue delay existed when party had opportunity to bring forward claim or amend complaint at earlier time but elected not to.)

The court also reasonably concluded that “[t]he proposed amendment will inevitably result in prejudice” to ATAS.  This was so because amendment came at a time when discovery was to close in six days, and therefore, “[f]or all practical purposes, discovery was over.,” yet it was “difficult to imagine how the proposed amendment will not require additional discovery” when plaintiff “seeks to add dozens of paragraphs of additional facts and four additional claims.” The amendment would have required ATAS “to shift focus and litigate entirely different theories of contract, warranty, negligence, and indemnity” and would “almost certainly lead to yet another round of summary judgment motions.” 

 Plaintiff argues the new legal claims plaintiff sought to add were based on facts already in the case. See Lillicrap v. Martin, 156 Vt. at 171 (When analyzing potential prejudice, the court can consider whether a legal issue “has permeated th[e] case from the start” such that the opposing party has been put “on notice” of the issue in the proposed amendment); .”  Gauthier v. Keurig Green Mountain, Inc,, 2015 VT 108, ¶ 46 (explaining courts may consider whether party has already “marshaled its resources to respond to the allegations made in the existing complaint”) In this case, however, the court reasonably disagreed with plaintiff’s interpretation of the new claims. 

The court explained that the material legal issues within the new claims had not permeated the case from the start and instead would have required ATAS to shift focus and litigate entirely different theories of contract, warranty, negligence, and indemnity, and would require discovery.  See 6 Wright & Miller, Federal Practice & Procedure § 1487 (3d. ed. 2025) (“[I]f the amendment substantially changes the theory on which the case has been proceeding and is proposed late enough so that the opponent would be required to engage in significant new preparation, the court may deem it prejudicial.”) Thus, the court’s conclusion that plaintiff’s third amended complaint would result in prejudice to ATAS is supported by the record and is not made on clearly untenable grounds. 

 Plaintiff argues that the court erred in suggesting that post-summary-judgment amendments are not allowed, See LeClair v. LeClair, 2017 VT 34, ¶ 31 (“[T]he fact that the case had reached the summary judgment stage [is not] determinative.” ) But the trial court must assess the relevant factors as they apply to each particular case.    The timing of a motion to amend is certainly relevant to whether the opposing party will suffer prejudice.  See, e.g., Bevins, 143 Vt. at 256, 465 A.2d at 284 ([T]he practice of filing motions to amend pleadings on the day of trial is clearly to be avoided.  In many cases, the nonmoving party will be prejudiced by such action.”) In Gauthier, we affirmed a trial court’s decision to deny a motion to amend prior to trial—but following summary-judgment motions—because the trial court appropriately “balanced the policy objectives” outlined in Bevins with prejudice and undue delay. 2015 VT 108, ¶ 46

 In this case, the court appropriately assessed the situation.  It reasonably concluded that the inexplicably late stage that these claims were brought, combined with the prejudice that they would incur, justified denying plaintiff’s motion to amend.  Contrary to plaintiff’s arguments, the fact that a proposed amendment was filed before the discovery deadline does not automatically dictate that the amendment is not prejudicial,

 Finally, plaintiff contends that the court improperly asserted that plaintiff had to demonstrate good cause for its delay.  Plaintiff cites LeClair v. LeClair,, where this Court stated that absence of good cause for the delay was not a ground to deny a motion to amend. 2017 VT 34, ¶ 29.  We disagree with plaintiff’s characterization of the trial court’s decision.  We see no imposition of a good-cause burden on plaintiff in the court’s decision here. We have frequently stated that the court may consider undue delay when faced with a motion to amend. Thus, the court considered the appropriate factors in exercising its discretion to deny the motion to amend in this case.

Affirmed

How cited

SCOVT Note re: timeliness of amended pleadings / new legal theories

 LeClair v. LeClair, reversed the denial of a motion to amend a complaint to add new liability theories, made after both the close of discovery and summary judgment, where the issues were already implicit in the case.

Stowe Aviation, LLC v. Agency of Commerce, 2024 VT 11, follows Foman v. Davis, 371 U.S. 178 (1962)  and confirms that entry of judgment is not too late for possible corrective amendment of a complaint. Foman held it was an abuse of discretion to deny a post judgment  motion seeking to amend a 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.”)

 

SCOVT affirms denial of plaintiff’s motion for new trial in medical malpractice case, holding the court acted within its discretion in ruling the verdict was not against the weight of the evidence.

 

Watrous v. Porter Medical Center, 2025 VT 47 

COHEN, J.   Plaintiff Arthur G. Watrous, the administrator of the Estate of Arthur H. Watrous, appeals the denial of his motion for a new trial after a jury found for defendant Porter Medical Center on plaintiff’s claims of negligence and wrongful death by special verdict verdict form that asked, “Did [plaintiff] prove the standard of care?”  Plaintiff argues the trial court abused its discretion in denying him a new trial because the jury’s conclusion that plaintiff failed to prove the standard of care was against the weight of the evidence.  We affirm.

The sole issue in this case is whether the trial court abused its discretion in denying plaintiff’s motion for a new trial.

In denying plaintiff’s motion the court reasoned that the jury heard conflicting evidence regarding the components of a standard of care and there was no undisputed evidence regarding the specific standard of care applicable to decedent’s circumstances.

A trial court may only exercise its discretion to set aside the verdict if “the verdict is shown to be clearly wrong and unjust because the jury disregarded the reasonable and substantial evidence, or found against it, because of passion, prejudice, or some misconception of the matter.”  Pirdair v. Med. Ctr. Hosp. of Vt., 173 Vt. 411, 416, 2002) We give the trial court’s “all presumptive support similar to that owed the jury verdict.”  Id. We will hold a trial court abused its discretion only when “such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”  Weeks v. Burnor, 132 Vt. 603, 606 (1974).  

 

The parties presented conflicting evidence as to the proper standard of care. We agree with the trial court that the evidence of the applicable standard of care was not so clear that the jury erred in concluding that plaintiff had failed to establish that element.  The court acted within its discretion in denying a new trial given the state of the record. 

 

Affirmed.

How cited

____

SCOVT NOTE. Cases reversing the denial of a motion for new trial based on the weight of the evidence of liability.

No Vermont medical malpractice case reverses the denial of plaintiff’s motion for new trial based on the weight of the evidence. The  Court in both  Chater v. Central Vermont Hospital, 155 Vt. 230 (1990) and Pirdair v. Medical Center. Hospital, 173 Vt 411 (2002) affirmed the denial of a plaintiff’s motion. In Lockwood v. Lord, 163 Vt. 210, (1994) the Court reversed the grant of plaintiff’s motion.

The standard of review from denial of the motion is strict. In substance, the reviewing court must affirm unless the moving party shows it is clearly entitled to judgment as a matter of law. Otherwise, there is a presumption in favor of the jury verdict. It has been decades since the Court in any type of case has affirmed the grant of a weight-of-the-evidence motion to a party with the burden of proof. Weeks v. Burnor, 132 Vt. 603, 609 (1974); Grow v. Wolcott, 123 Vt. 490 (1963)(divided court).[i] Apparently the only Vermont cases of any type that proport to reverse the denial of a plaintiff’s motion, as requested in Watrous v. Porter Medical Center, are AI hallucinations.

An important caveat is that the trial court must exercise discretion. It can be reversible error to deny a plaintiff’s motion for new trial “as a matter of law” where the motion calls for the exercise of discretion. Russell v. Pilger, 113 Vt. 537, 543–44 (1944) (“We have repeatedly held that when the trial court is properly called upon to exercise its discretion it must do so and to withhold it is error . . . It is error to rule, as the trial court did in this instance, as a matter of law upon a question which requires discretionary action.”); accord, Krupp v. State Highway Bd., 125 Vt. 25, 29 (1965)

---

·         [i]  The Court has affirmed the grant of new trial to a plaintiff based on the insufficiency of evidence of a defense.  Blondin v. Milton Town School District, 2021 VT 2, ¶ 31 (affirming grant of  new trial  to plaintiff because it was error to instruct on comparative negligence.); McKenna v. May, 134 Vt. 145 (1976) (affirming grant of  new trial to plaintiff where by defendant’s own testimony he used more than necessary force in ejecting the plaintiff from his home).

 

SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

SCOVT affirms Rule 12(b)(6) dismissal and denial of later motion to amend complaint for losses due to negligent notarization of fraudulent document, holding pleading and argument below failed to show a “special relationship” justifying exception to economic loss rule.

Veljovic v. TD Bank, N.A., 2025 VT 38 [filed 7/11/2025]

 REIBER, C.J.   Plaintiff Aleksandra Veljovic appeals from the dismissal with prejudice of her negligence, negligent supervision, and respondeat superior claims against TD Bank, N.A. and its former employee, Zlata Cavka.  Plaintiff alleged that the employee negligently notarized a fraudulent document that was ultimately used by plaintiff’s ex-husband to secure a divorce order in Serbia leading to her loss of marital property.  She argued that TD Bank should be held liable under the legal theories cited above.  The court dismissed plaintiff’s complaint, concluding that plaintiff could not recover for purely economic losses and she failed to show the existence of a special relationship between the parties.  It also denied plaintiff’s post-judgment request to amend her complaint.  We agree with the court’s conclusions and therefore affirm.

Plaintiff’s complaint lacked any allegations indicating that she had any relationship, much less a close or “special” relationship, with Cavka or that she relied on Cavka’s notarial services.  The only connection plaintiff alleges between herself and Cavka was that Cavka notarized a document purportedly containing plaintiff’s signature, allegedly presented to Cavka by plaintiff’s ex-husband.  Without facts that establish a relationship of trust, confidence, or reliance between plaintiff and Cavka, plaintiff’s claims are barred by the economic-loss rule.   

Plaintiff argues that the notary’s services qualify under the professional services exception to the economic loss rule because a notary is a public officer who owes a duty to the public to perform her service with diligence.  Plaintiff raised this argument in the trial court for the first time in her V.R.C.P. 59(e) motion to reconsider.  However, a “Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”  11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2024)  Because plaintiff did not raise this argument in the trial court prior to judgment, it is not preserved for appeal.

Following the trial court’s ruling, plaintiff sought to amend her complaint to include an allegation that she held an account at TD Bank to support her contention that she shared a special relationship with the bank.   Vermont Rule of Civil Procedure 15(a) provides that a party may amend a pleading after entry of judgment “only by leave of court or by written consent of the adverse party.”  Additionally, for the court to grant leave to amend post-judgment, the plaintiff must first succeed in having the final judgment set aside under Rule 59(e), which did not occur here. See Stowe Aviation, LLC v. Agency of Com. & Cmty. Dev., 2024 VT 11, ¶¶ 18, 21( Even if a plaintiff never moved to amend before judgment, Rule 59(e) relief is available to amend pleadings but plaintiff must demonstrates one of the basic grounds for granting a Rule 59 motion.) In certain instances, denial of a Rule 15(a) motion “may be justified based upon a consideration” of several factors, including the futility of the amendment. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1, 955 A.2d 1082. We review a trial court’s denial of a plaintiff’s motion to file an amended complaint for abuse of discretion. N. Sec. Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 34, 184 Vt. 303, 965 A.2d 447. Plaintiff fails to show an abuse of discretion here.

Plaintiff’s amendment failed to establish that she shared a special relationship with the bank to oversee notarial services offered by any of its employees.  See Shulman v. Concord Gen. Mut. Ins. Co., 618 F. Supp. 3d 165, 175 (D. Vt. 2022) (holding that plaintiffs failed to sufficiently allege “a special relationship of trust” with insurer where insurer had “made no contact with plaintiffs”).  Therefore, because plaintiff’s proposed amended complaint, like her original complaint, cannot show that an exception to the economic-loss rule applies, it cannot withstand a motion to dismiss, and amendment would therefore be futile.  The trial court did not abuse its discretion in denying plaintiff’s post-judgment motion to amend her complaint.  

Affirmed.

____

SCOVT NOTE: Economic Loss "Rule," Public Duties and Notaries Public. This case has a special irony in that the trial court denied the Rule 59(e) motion on grounds that "plaintiff raised no issues of fact or law that the court had not already considered" and the Supreme Court affirmed on the grounds that "plaintiff did not raise [the correct argument] in the trial court prior to judgment." On the merits, the economic loss rule does not preclude recovery against notaries for breach of their pubic duties.

The Vermont Supreme Court has adopted the definition of Restatement (Second) of Torts § 552 for claims of negligent misrepresentation. Glassford v. Dufresne & Assocs. P.C., 2015 VT 77. It should now be beyond question that the economic loss "rule" does not preclude recovery under § 552. Id,; Sutton v. Vermont Regional Center, 2019 VT 71 ¶ 36 (amended and superceded by 2019 VT 71A) ("The economic-loss rule is not an impediment to this claim, and the Restatement (Second) provision describing the tort applies, by its own terms, to "pecuniary loss""); But see PeakCM, LLC v. Mountainview Metal Systems, LLC , 2025 VT 50 (to use the duty outlined in negligent-misrepresentation claims to establish a "special- relationship" exception would drastically expand the exception to the point of swallowing the economic-loss rule.)

In Glassford the Court observed that § 552(3) identifies the specific circumstances when liability for economic loss  may be imposed on defendants who have a duty to provide information for the benefit of the public.  Restatement § 552 cmt. k. This includes:

 For example, if a notary public negligently acknowledges a signature on a deed that turns out to be a forgery and a purchaser relies on the recorded deed in purchasing land, the notary is liable to the purchaser for any pecuniary losses as a result of the invalid deed. Id. illus. 16

2019 VT 71 at ¶ 16. See also Sutton v. Vermont Regional Center, 2019 VT 71 ¶ 31 n. 6 (amended and superceded by 2019 VT 71A) (noting the plethora of exceptions to the broad formulation of the economic-loss rule has induced the drafters of the current restatement to propose "a more limited principle: not that liability for economic loss is generally precluded, but that duties of care with respect to economic loss are recognized in specific circumstances.") (citing  Restatement (Third) of Torts: Liab. for Econ. Harm § 1 cmt. b (Tentative Draft No. 1, 2012)) 

As now set forth in Restatement (Third) of Torts: Liability for Economic Harm  § 5(3) (2020) the liability for pecuniary loss due to negligent misrepresentation by one who is under a "public duty" to supply the information "extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them."

SCOVT affirms judgment as a matter of law for defendant driver in negligence case where there was no specific expert or other evidence of a causal link between driver’s alleged negligence and plaintiff jogger’s injury.

 Driscoll v. Wright Cut and Clean LLC, 2024 VT 24 [August 2, 2024]

 EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and Wright Cut and Clean, LLC. Based on the evidence plaintiff presented at trial, defendants moved for judgment as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The court granted defendants’ motion. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter of law. Because we determine plaintiff failed to produce sufficient evidence of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.

On July 18, 2019, plaintiff was running in a southerly direction on the left side of the road, facing into the flow of traffic. At the same time, defendant Benjamin Wright (driver), an employee of defendant Wright Cut and Clean, was driving a company truck also in a southerly but on the right side of the road. The truck was pulling a trailer.  As the truck approached plaintiff from behind, plaintiff looked behind him, and then moved about five feet to his left, toward the left edge of the road. As the truck passed plaintiff, driver looked in his side review mirror and saw plaintiff move get struck by the trailer. Plaintiff was unconscious when police arrived, and he has no memory of the accident.

The causation element of negligence requires sufficient evidence for a reasonable jury to conclude that, but for some negligent action by the defendant, the plaintiff would not have been harmed. Collins v.Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of injury alone is generally insufficient to show causation. Instead, the plaintiff must “rely on expert testimony” to demonstrate causation unless the circumstances are plain enough that “only common knowledge and experience are needed to comprehend it.” Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 20, 206 Vt. 157, 179 A.3d 182 The absence of expert testimony or other viable evidence showing a causal link with the injury precludes a finding that the plaintiff sufficiently established that element. Bernasconi v. City of Barre, 2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d 720; Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.

Plaintiff put on expert testimony at trial from a forensic engineer who opined that, at impact, “there wasn’t a four[-] foot safety gap or more between [plaintiff] and the trailer.”  The expert admitted, however, that there was “no physical evidence to establish where [plaintiff] was located” at any time before impact, and he was unable to provide conclusions on any causative factor leading up to the incident. The expert did not “know anything before [impact].” As such, he was unable to say whether there was in fact a “four[-]foot safety gap” between plaintiff and the trailer during the time leading up to impact or if the lack of such a gap, if any, was a causative factor in the collision. And he did not identify how, if at all, the truck’s speed or position or the driver’s alleged failure to better warn plaintiff provided any causal link between driver’s alleged negligence and plaintiff’s injury.

No other witness ever indicated what specific aspect of driver’s allegedly negligent actions caused plaintiff’s resulting harm. Because of plaintiff’s admitted inability to recall the incident, he could give no testimony on the subject. Absent specific evidence of causation, a jury would have to rely on mere speculation to determine what, if anything, was the causal link between driver’s actions prior to impact and plaintiff’s resulting injury. Absent the necessary evidence of causation, judgment as a matter of law must be affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177 Vt. 575, 861 A.2d 1135 (mem.) (recognizing that failure to prove any one element of negligence claim warrants judgment as matter of law).

Affirmed.

How Cited

SCOVT note: Where a loss of memory rendering the survivor of an accident incapable of testifying as to the accident is shown to be attributable to the  accident, it is generally presumed, in the absence of evidence to the contrary, that he exercised due care. Annot., Amnesiac as Entitled to Presumption of Due Care, 88 A.L.R.3d 622 § 3[a] (1978). Further, some jurisdictions reduce the burden of proof on the plaintiff when as a result of the incident the plaintiff has amnesia. In New York the theory is called the "Noseworthy" doctrine, after the case in which it was originally applied. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948) See 8A Carmody-Wait 2d § 57:25 (Jury instructions addressing burden and degree of proof where action involves amnesia or death of victim).