SCOVT affirms dismissal of constitutional and common law tort claims under the six-year statute of limitations where suit was filed more than six years after defendant's construction of improvements that periodically directed stormwater toward plaintiff’s land, holding that none of the claims are for recovery of land subject to the fifteen-year statute and that the continuing tort doctrine, which Vermont has not adopted, would in any event not apply since no "tortious act" occurred within the general six-year limitations period.

 

Nesti v. Agency of Transportation, 2023 VT 1 

 

CARROLL, J. Landowner Frances Nesti appeals two civil-division orders resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans) on grounds of statute of limitations. We affirm.

 In 2006, VTrans rebuilt Route 7 in South Burlington and Shelburne. The project included constructing a new, enclosed stormwater-drainage-management system that directed stormwater downhill from the road in a westerly direction toward Lake Champlain. Nesti’s property lies west of Route 7 and abuts the lake.  Nesti filed suit on December 31, 2018, pleaded takings, trespass, and private-nuisance claims, seeking damages and injunctive relief arising from stormwater runoff that began forming in a ravine sometime after the completion of the project.

 

The court found on motion under Rule 12(b)(6 ) that Nesti was on notice that her claims accrued before December 31, 2012 (a conclusion Nesti does not challenge on appeal, except to claim continuing accrual). This  was the cutoff date for her December 31, 2018, complaint under 12 V.S.A. § 501, if it applies.

 

The court permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question of whether they were continuing torts.  However, on summary judgment, the court determined that the lack of any tortious conduct within the limitations period would take the case out of the doctrine’s operation. The court entered judgment for VTrans on all claims. 

 

On appeal Nesti makes essentially four arguments: (1) her takings (inverse condemnation) claim  is not time-barred because it is subject to the fifteen-year limitations period for bringing claims to recover lands under 12 V.S.A. § 501; (2) to the extent the takings claim is time-barred under 12 V.S.A. § 511, it violates the federal and Vermont Constitutions; (3) her trespass and nuisance claims are also subject to 12 V.S.A. § 501; and (4) if § 501 does not apply to the tort claims, they are not time-barred under the continuing-tort doctrine

 

(1)

An inverse condemnation claim is not an action for the recovery of land

Nesti argues that her takings claim is subject to the fifteen-year statute of limitations for bringing actions to recover lands under 12 V.S.A. § 501,  not the general six-year statute of limitations for civil actions under 12 V.S.A. § 511.

12  V.S.A § 501 provides

[A]n action for the recovery of lands, or the possession thereof, shall not be maintained, unless commenced within 15 years after the cause of action first accrues to the plaintiff or those under whom he or she claims.

Nesti argues, in effect, that because VTrans could obtain a prescriptive easement or adversely possess her property only  after the fifteen-year limitations period, her takings claim cannot be cut off at six years under § 511 because that would be tantamount to granting the State a property interest without just compensation nine years before it could make out a prima facie claim of adverse possession  for such an interest.  We disagree. 

Adverse possession and takings claims are distinct causes of action and subject to different limitations periods because each is a product of contrasting public policy choices.  The fifteen-year state, 12 V.S.A. § 501, does not apply to inverse condemnation claims under Vt. Const. ch. I, art. See Dep’t of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, ¶ 6.

(2)

 Constitutional arguments raised below but not addressed by the trial court will not be considered on appeal.

Nesti next argues that barring her takings claim under § 511 violates the federal and Vermont Constitutions. However the civil division did not actually address this argument in either its summary-judgment order or on the State’s motion to dismiss.  Nesti did  not assign error to the civil division’s failure to address her constitutional arguments This  results in waiver in this Court. See State v. Nash, 2019 VT 73, ¶ 18, 211 Vt. 160, 221 A.3d 386 (holding that issues not challenged for plain error on appeal are waived without review); see also V.R.A.P. 28(a)(3) (requiring appellants to provide, among other things, “specific claims of error”). Accordingly, we do not address the merits of this argument.

(3)

 Trespass and nuisance claims are not actions for the recovery of lands.

Nesti next argues that her tort claims are  “an action for the recovery of lands, or the possession thereof” under  12 V.S.A. § 501, not governed by  12 V.S.A. § 511.

 

a) Trespass

 Liability for trespass arises when one intentionally enters or causes a thing to enter the land of another. Thus, one who causes water to enter the land of another is liable for trespass.

 

 We have held that trespass claims are subject to the six-year statute of limitations provided by 12 V.S.A. § 511. Jadallah v. Town of Fairfax, 2018 VT 34, ¶ 16, 207 Vt. 413, 186 A.3d 1111 (holding that appellant’s claims, including trespass, “are all civil” rendering them subject to “the six-year period under § 511”); Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 51-52, 87 A. 349, 351-52 (1913) (same).

 

Nesti is correct that she has fifteen years to bring an action to recover lands under § 501, but she is incorrect that she has fifteen years—or more—to bring a trespass action from the date on which the trespass cause of action accrues. The aggrieved party has the full six-year period to file a trespass claim, and the full fifteen years to recover lands under § 501. It is simply not true that affirming the civil division will mean “trimming” nine years off the fifteen years permitted by statute to recover lands.; instead, she failed to file her trespass  complaint within the six years the Legislature provided for such actions.

 

b) nuisance

Private nuisance is “a substantial and unreasonable interference with a person’s interest in the use and enjoyment of land.” A claimant has six years to bring a nuisance cause of action following the causes of action’s accrual. Alpstetten, 137 Vt. at 512-13, 408 A.2d at 646 14 (“The appellant alleged a tortious act resulting in an interference with the use and enjoyment of his property. Accordingly, the six[-]year statute of limitations is applicable.”)

 

(4) No continuing tort

Nesti’s final argument is that her trespass and nuisance claims are timely under the continuing-tort doctrine, and she asks this Court to apply the doctrine for the first time.  Nesti argues that she suffers a continuing harm with “each rush of water creating a fresh harm for which a new [cause of action] should accrue.”

 

The continuing tort doctrine requires “at least two elements: a continuing wrong, and some action contributing to the wrong that occurred within the limitations period.” Gettis v. Green Mountain Economic Development Corp., 2005 VT 117¶ 25. The contributing action cannot be “simply the continuing ill effects of prior tortious acts,” Id. ¶ 28.

 

VTrans has made no material change to the system since 2006.  Nesti has not alleged that VTrans committed a tortious act after the 2006 reconstruction. Without at least one such act occurring within the six-year limitations period, we are unpersuaded by Nesti’s argument because, even if we adopted the doctrine, it would not apply in this case. Accordingly, Nesti’s tort claims are time-barred.

 

Affirmed.

How cited

---

SCOVT NOTE:  This case is puzzling because it seems to determine the applicable statute by reference to the legal theory (nuisance, trespass, inverse condemnation) rather that the nature of the harm or relief requested.  That is, an action for trespass or ejectment that seeks return of possession could be potentially be treated differently under the 15-year statute than one that sought only damages. (In this case the  trial court dismissed Nesti's ejectment causes of action for failing to state a claim, and Nesti did not appeal that determination.) The holding that an inverse condemnation claim is not governed by the 15-year statute can only be explained by defining an inverse condemnation claim as one seeking only damages for an unconstitutional taking.

Neither Jadallah nor Wheeler, cited by the Court, held that § 511 applies to “trespass claims.” Section 511 is the general civil statute of limitations that applies “unless as otherwise provided." -- when no other statute is applicable. Jadallah merely held that § 511 governed in that case because “appellant has not presented any reason to this Court that any statute of limitations other than the six-year period under § 511 is applicable.” 2018 VT 34, ¶ 16.

The Wheeler Court expressly did not decide if the six-year statute applied. It reversed a dismissal on the pleadings based on the six- year statute because the allegations supported a continuous accrual theory, invoked equity jurisdiction based on a  continuous trespass; and in event the six -year statute did not bar claims for injury within the most recent six-year period. The Court remanded the case in language that seems to support, rather than reject, a "continuing tort" theory that looks at when the harm, not the tortious act, occurred:

As to the statute of limitations, the demurrer is too large, for it goes to the whole bill, whereas, if good at all, which we do not decide, it is good only for what lies back of the statutory period, for the case is one of continuous injury without fresh violence, and of constantly accruing damages, the statute can cut off only back of six years from suit brought.

Wheeler v. Town of St. Johnsbury, 87 Vt. 46, (1913) (emphasis added) (citing precedent elsewhere establishes that a wrongful continuous flowing of land by means of a dam is a continuing injury, and affords a constantly accruing cause of action) 

Plaintiff Nesti's reply brief alerted the Court to no avail that Wheeler did not hold the six-year statue applies to trespass claims but instead supported the continuing trespass theory: 

VTrans' also relies on Wheeler v. Town of St. Johnsbury 87 Vt. 46, 51-52 (1913) as support for the imposition of a six-year statute of limitations to trespass claims. Wheeler does not support VTrans. Rather Wheeler stands for the opposite position and supports Appellant. In Wheeler this Court explained that where there was a continuous trespass (say the continued diversion of water) that gives rise to constantly accruing causes of action, dismissal under a six-year statute isn't warranted (though damages may be limited). Id. at 349. Thus the Wheeler Court reversed a denial of claims on the basis of a six-year statute of limitations claim when there was a constant trespass. 

A puzzling case indeed.  A case well-briefed, but the briefs were unread.

 

On interlocutory appeal SCOVT holds amended statute of limitations does not violate Chapter I, Article 4 of the Vermont Constitution by reviving an otherwise time-barred claim of childhood sexual abuse.

A.B. v. S.U., 2023 VT 32

REIBER, C.J. Plaintiff1 sued defendants alleging childhood sexual abuse, and defendants moved to dismiss on the ground that the statute, which eliminated the prior limitations period, was unconstitutional. The civil division denied the motion to dismiss, and defendants now bring this interlocutory appeal to determine whether 12 V.S.A. § 522 violates Chapter I, Article 4 of the Vermont Constitution by reviving an otherwise time-barred claim of childhood sexual abuse. We conclude that there is no constitutional violation and affirm.

Article 4 states: “Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character . . . ” Vt. Const. ch. I, art. 4.

This Court has treated Article 4 as the Vermont equivalent of the federal Due Process Clause. Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). “The Vermont Constitution may provide greater protection than analogous provisions in the U.S. Constitution, but the proponent of such an argument “bears the burden of explaining how or why the Vermont Constitution provides greater protection.” State v. Read, 165 Vt. 141, 153, 680 A.2d 944, 951 (1996). See State v. Jewett, 146 Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985) (providing examples of arguments that advocates may use to meet burden of demonstrating that Vermont Constitution provides greater protection than U.S. Constitution)

In 2019, the Legislature amended § 522 to remove the limitations period and allow claims of childhood sexual abuse to be commenced “at any time after the act alleged to have caused the injury or condition.” 2019, No. 37, § 1. The amendment contained a retroactivity provision that “Notwithstanding 1 V.S.A. § 214, this section shall apply retroactively to childhood sexual abuse that occurred prior to the effective date of this act, irrespective of any statute of limitations in effect at the time the abuse occurred.”

Although federal jurisprudence is not controlling in this case involving the Vermont Constitution, it is helpful to understand how the analogous federal provision has been interpreted given that our cases have generally viewed Article 4 as equivalent to the federal Due Process Clause.

The U.S. Supreme Court has long held that in the civil context an expired limitations period as a defense to an action does not create a vested right and therefore a legislature does not violate the U.S. Constitution by altering an existing limitations period and making it apply retroactively. Based on that precedent, the U.S. District Court for the District of Vermont rejected a claim that the 1990 retroactivity provision of 12 V.S.A. § 522 violated the U.S. Constitution. See Barquin v. Roman Cath. Diocese of Burlington, Vermont, Inc., 839 F. Supp. 275, 281 (D. Vt. 1993) (rejecting constitutional due process defense based on Supreme Court precedent that legislatures retain power to revive actions that were previously barred by limitations period)

To be clear, the federal precedent is not binding on our analysis of the Vermont Constitution. However, we conclude that the reasoning of the federal decisions regarding federal due process is logical, persuasive, and consistent with this Court’s past cases involving Article 4. We conclude that defendants do not have a property interest or other right that is protected by Article 4 and therefore that they have suffered no deprivation of due process.

Like the U.S. Supreme Court, this Court has described limitations periods in statutes as creating a remedy and not a substantive right. See Carter v. Fred’s Plumbing & Heating Inc., 174 Vt. 572, 575, 816 A.2d 490, 494 (2002) (mem.) (rejecting plaintiff’s claim that change extending a statutory limitations period applied retroactively and describing statute as limiting “the availability of a remedy,” rather than interfering with a vested right).

There is persuasive analysis from several other states holding that state legislatures may retroactively revive previously barred civil claims without violating state constitutional provisions ensuring due process. These states, like Vermont, view limitations periods as relating to remedies rather than rights.

The holding of  Bates v. Kimball, 2 D. Chip. 77 (Vt. 1824), cited by defendants, is inapplicable. Defendants have not obtained a judgment, and the legislative act challenged here is not aimed at invalidating an existing adjudicated right between the parties.

Not only is there no precedent in Vermont for the outcome defendants seek, defendants have also not provided any historical analysis or textual argument. See Ferry v. City of Montpelier, 2023 VT 4, ¶ 29 (explaining that Vermont Constitution first adopted in 1777 when Vermont was independent republic and new constitution was adopted in 1793 after Vermont joined United States as fourteenth state in 1791)

Defendants’ arguments about their inability to litigate against these particular claims given the passage of time is not relevant to the limited question presented to this Court—whether § 522’s retroactivity provision violates Article 4 of the Vermont Constitution because it deprives defendants of a vested right. Defendants claimed that they had a vested right in the expired limitations period. We have rejected that premise and hold that defendants have no vested property interest in the expired limitations period.

Affirmed.

How cited

SCOVT NOTE.  A.B. v. S.U., 2023 VT 34 addresses whether the running of a statute of limitations creates a “vested right” that cannot under Article 4 be “revived” by subsequent legislation. The Court says “no.”

In this case the old statute had run, and suit not brought until after adoption of the new statute lengthening the time limit. The new statute is expressly made applicable “retroactively to childhood sexual abuse that occurred prior to the effective date of this act, irrespective of any statute of limitations in effect at the time the abuse occurred.”

Article 4 does not prohibit this, the Court says, because the federal due process clause does not prohibit it and defendant did not provide any precedent, textual or historical analysis of Article 4 to show it has a different interpretation. Defendants had not obtained a judgment under the old statute, and the legislative act thus does not invalidate a vested existing adjudicated right between the parties.

If  A.B. v. S.U..is to be remembered, it should be remembered for two things.

First, for its citation to State v. Jewett, 146 Vt. 221, 225-27 (1985) and its reminder that Vermont lawyers should do the work necessary to flesh out any uniquely Vermont meaning of our own Constitution. See also Gladchun v. Eramo, 2023 VT 5 (relying on Vermont's unique character and history to interpret a deed.)

Second, for its citation to Bates v. Kimball, which all Vermont lawyers should remember and cite as Vermont’s’ seminal case establishing and exercising the power of judicial review – to declare what the law is and to invalidate an unconstitutional statute:

The constitution of this State, Ch. 2, sec. 9, after defining the powers of the General Assembly, proceeds as follows: -“But they shall have no power to add to, alter, abolish, or infringe, any part of this constitution.” . . .

This constitution is the fundamental law of the State. The Legislature have not power to vary its provisions; . . . The interpretation of the laws is the proper and peculiar province of the Courts. It must therefore belong to them to ascertain the meaning of the constitution, as well as the meaning of any particular act proceeding from the Legislative body. It is our duty, therefore, as well as our prerogative, to declare that alone to be the law, which is reconcilable with this fundamental law-this fiat of the sovereign people.

Bates v. Kimball, 1824 WL 1336, at *5 (Vt. Feb. 1, 1824)

***

19th Century Vermont precedent is clear that the Vermont Constitution permits lengthening a statute of limitations retroactively, after the original statute has expired. Lowry v. Keyes, 14 Vt. 66 (1842 ) (statutes of limitation govern the remedy, not the right: “ the legislature may repeal or amend them at pleasure.”) Indeed, a statute of limitations was historically presumed to apply retrospectively “unless limited by its terms to prospective application.” Cardell v. Carpenter,  42 VT. 234, 236 (1869)

But 1 V.S.A. § 214(b) has now changed the presumption.  In Capron v. Romeyn, 137 Vt. 553, 555, (1979) and Stewart v. Darrow, 141 Vt. 248, 253, (1982) , the Court held an amendment lengthening a statute of limitations did not revive a cause of action that had already been barred prior to its amendment. The holdings are a matter of statutory construction, not Article 4, and leave open the question addressed in A.B. v. S.U. (and already decided in Keyes) whether the Constitution permits lengthening of a period of limitations after the statute had run.

Recent caselaw says Article 4 prohibits shortening a statute of limitations without allowing a reasonable time time in which to file an action that arose and remained viable under a prior statute. Lillicrap v. Martin, 156 Vt. 165 (1991)

Also Article 4 does not require a repeal of a statute of limitations to be applied retroactively, contrary to legislative intent. Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572 (2002) (“[W]hile the Legislature may create reasonable limitations on rights of action, due process does not permit the legislature to annul vested rights. The Legislature never interfered with a vested right of the plaintiff; rather, it limited the availability of a remedy. In the absence of a vested cause of action, there is no constitutional deprivation or right to redress.”) (Internal quotation marks and citation omitted)

The defendants in A.B. v. S.U. cited Carter, for its discussion of “vested rights” but evidently did not address recent case law that suggests there is a “vested right” in the running a statute of limitations that cannot be affected by later legislation lengthening the period.

Murray v. Luzenac Corp., 2003 VT 37, ¶¶ 7-9 held an amendment lengthening the statute of limitations could be applied to injuries occurring prior to the amendment, but used language suggesting this was so on the only facts of the case where the period of limitation had not run at the time of the amendment. Indeed, the Court has cited Murray as “holding that no rights vest in a statute of repose until the time period has lapsed.” Sanz v. Douglas Collins Const., 2006 VT 102, ¶ 9, 180 Vt. 619, 621, 910 A.2d 914, 917 (2006),

In the end it appears that exploring whether a right is constitutionally “vested” or not; or whether a statute affects the “remedy” as opposed to the “right” does not advance a solution to the problem. These are labels that can be used only to catalog the result, not explain it.

Without discussing Murray or Sanz and without citing -- but consistent with -- the 1842 holding in Keyes, the A.B. v. S.U. Court concluded that the Constitution does not prohibit lengthening a statute of limitations retroactively after the original statute has expired. This result was compelled by the assumption that Article 4 is coincident with federal procedural due process and by the failure of defendants to cite any relevant Vermont precedent, constitutional text or history.

Medical malpractice. Strict compliance with certificate-of -merit statute. Statute of limitations not tolled.

Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 [5/18/2018]

SKOGLUND, J. This is a consolidated appeal involving two successive malpractice actions brought by the executor of a decedent’s estate against the clinic where the decedent received treatment prior to her death and against the physician assistant who treated her. The trial court dismissed the first action because plaintiff failed to file the certificate of merit required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely. We conclude that the trial court properly dismissed both cases and therefore affirm.

Plaintiff contends that we should reverse because unlike the plaintiff in McClellan, he “substantially complied” with § 1042(a) by investigating the claim and providing defendants with an expert report that was equivalent to the certificate of merit prior to filing suit. We make explicit what we implicitly held in McClellan, namely, that § 1042’s requirement that a certificate of merit be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is “entirely omitted from the original complaint,” dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. McClellan, 2017 VT 13, ¶ 25. Strict enforcement of the certificate of merit requirement and the statute of limitations does not offend the Common Benefits Clause.

We also reject plaintiff’s argument that dismissal for failure to file a certificate of merit is a dismissal for lack of subject matter jurisdiction, and therefore the statute of limitations was tolled by 12 V.S.A. § 558. Because the failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action, 12 V.S.A. § 558 does not save plaintiff’s claim, and the trial court properly dismissed the second action.

Statute of limitations bars claim for roof defects as a matter of law, even if claimant did not yet understand the full extent of the problem, where undisputed facts show claimant had notice that something was wrong with the roof more than six years prior to suit.

Abajian v.TruexCullins, Inc., 2017 VT 74 [filed 8/25/2017]


EATON, J. Plaintiffs had a new roof installed on their home in 2001. In 2014, after the roof turned out to be defective, plaintiffs sued the architecture and construction firms that designed and installed the roof for negligence and breach of contract. The trial court granted summary judgment to defendants on the ground that the action was barred by the statute of limitations. The court ruled no reasonable jury could find that plaintiffs “were not on inquiry notice of some roof defect by 2005.” We now affirm.

A civil action must “be commenced within six years after the cause of action accrues.” 12 V.S.A. § 511. A cause of action accrues upon discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery.

Plaintiffs contend that the issue of when their claims accrued was a question of fact that was for the jury rather than the trial court to decide, and that a jury could find there was nothing to put them on inquiry notice regarding the condition of the roof until they experienced major leaks during the winter of 2012-13.

However, the question here is not when plaintiffs discovered the true nature of the roof defect, but when sufficient facts existed that would have led a reasonable person to begin the investigation that would lead to the discovery. Courts have not hesitated to grant summary judgment where the undisputed facts show that plaintiffs were aware of sufficient facts to put them on inquiry notice of a roof defect, even if they did not yet understand the full extent of the problem.

We agree with the trial court that, by 2005, plaintiffs were aware of facts sufficient to lead any reasonable homeowner to investigate the condition of the roof. At that point, they had already experienced a major, unprecedented leak that was severe enough for them to file an insurance claim. Rust spots had begun to appear. The ice damming problem, which the metal roof was supposed to mitigate, was worse than ever. Plaintiffs themselves stated that by 2005, the roof was not living up to their expectations and was “failing”.

There is no genuine dispute regarding these facts, which were sufficient to place a reasonable person on notice that something was wrong with the roof. These facts were sufficient as a matter of law for plaintiffs’ claims against defendants to accrue at that time.

Affirmed.

Summary judgment: Divided Court holds "bald" affidavit creates no issue of fact.

H&E Equipment Services, Inc. v. Cassani Electric, Inc., 2017 VT 17 9

SKOGLUND, J. Defendant Nicholas Cassani appeals from the trial court’s order granting summary judgment to plaintiff H&E Equipment Services, Inc. on its complaint to collect on a 2001 Arizona judgment. Defendant argues that the action is time-barred under 12 V.S.A. § 506. Alternatively, he contends that there is a material dispute of fact as to whether the Arizona court had personal jurisdiction over him at the time it entered its judgment. We affirm

Defendant argued that the Arizona judgment should not be enforced because he was not properly served with the complaint in the underlying Arizona action. He provided a sworn statement to this effect and argued that his affidavit created a material dispute of fact. Even if the Arizona court had jurisdiction over him, defendant asserted that the judgment could not be enforced in Vermont under 12 V.S.A. § 506

Given the Arizona judgment's recital that defendant was in fact served the court found that defendant had the burden of making a reasonable showing that he was not actually served beyond his mere assertion to this effect.

We begin with defendant's assertion that this action is time-barred under 12 V.S.A. § 506. Defendant reads the statute to require that any action on a judgment must be brought within eight years from the date of the "original judgment." We reject defendant's interpretation of 12 V.S.A. § 506 because it would lead to absurd results. Section 506 provides that "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after." The phrase "rendition of the judgment" is not limited to the "original" judgment, as defendant posits. Section 506 specifically provides for the renewal of judgments; and when a judgment is renewed—in Vermont or elsewhere under another state's laws—the date of the renewed judgment is controlling for purposes of 12 V.S.A. § 506.

We agree with the trial court that defendant failed to establish that a genuine dispute of material fact existed as to whether he was served with the Arizona complaint. Certainly, under other circumstances, a party's affidavit might suffice to create a dispute of material fact sufficient to defeat summary judgment. In this case, however, the Arizona judgment was presumptively valid and the judgment recited that defendant had been served with the complaint. Defendant's bald assertion concerning lack of service was insufficient to create a genuine factual dispute regarding service.

Because defendant failed to put forth sufficient evidence to rebut the presumptively valid foreign judgment or draw into question the express finding by the Arizona court that he was properly served, mmary judgment was properly granted to H&E

ROBINSON, J., concurring in part, dissenting in part. The majority suggests that testimony about a critical fact, given under oath and based on personal knowledge, is insufficient to create a dispute of material fact for purposes of summary judgment. That is a dramatic departure from well-established and universal principles of summary judgment adjudication. I dissent from the majority’s holding that defendant failed to establish a genuine dispute of material fact as to whether he was served with the Arizona complaint and would reverse the trial court’s summary judgment ruling on that basis.

I am authorized to state that Justice Dooley joins this concurrence and dissent. 

SCOVT dismisses medical malpractice suit as untimely where no certificate of merit filed within the statute of limitiations.

McClellan v Haddock, 2017 VT 13   

SKOGLUND, J. Plaintiff in this wrongful-death action appeals from a trial court judgment dismissing her complaint as untimely. Plaintiff contends the trial court erred in: (1) denying her motion to amend the complaint to include a certificate of merit; (2) declining to treat the motion to amend as a petition to extend the statute of limitations; and (3) dismissing a claim for personal injuries incurred during the decedent’s lifetime.

The statute requires the filing of a certificate of merit "simultaneously with the filing of the complaint." 12 V.S.A. § 1042(a). The overarching purpose of the statute is to protect defendants from the burden of defending medical malpractice claims lacking in expert support. Denial of amendmand and dismissal of a complaint filed without the requisite certificate of merit attesting to such support is essential to effectuate that purpose.

Section 1042(d) provides that, "[u]pon petition to the clerk of the court where the civil action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section." The trial court here could not have granted a ninety-day extension of a statute of limitation that had already expired when the motion to amend was filed.

We affirm.

REIBER, C.J., dissenting. The outcome in this case is not mandated by the statutory language or its purpose. The certificate-of-merit requirement is to provide a mechanism to easily identify and dismiss baseless malpractice claims against health providers. The statute recognizes, however, that plaintiffs with legitimate claims may require extra time to comply with this requirement and provides for an automatic ninety-day extension. Plaintiff’s motion to amend the complaint should have been treated as such a request and allowed to go forward. Precluding plaintiff from doing so does not forward the goal of ferreting out unmerited claims and is inconsistent with this state’s preference of deciding cases on their merits and preserving the constitutional right of access to the courts. Moreover, under our liberal pleading rules, plaintiff adequately pleaded claims for injuries occurring prior to the statutory effective date that were not subject to the certificate-of-merit requirement. For these reasons, I would reverse and dissent from the majority’s affirmance of the dismissal.


SCOVT NOTE. See Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 (reaffirming McClellan and requiring strict compliance)

Statute of limitations applies to bar State's claim for groundwater contamination, notwithstanding exemption for state property.

State v. Atlantic Richfield Company, 2016 VT 61 (filed May 27, 2016)

ROBINSON, J. This interlocutory appeal calls upon us to decide whether the general six-year limitations has run on the State of Vermont’s claims against defendants for injury to state waters due to groundwater contamination from gasoline additives. The trial court dismissed the State’s claims on the basis of the statute of limitations, insofar as they are predicated on generalized injury to state waters as a whole. On appeal, the State argues that 12 V.S.A. § 462 exempts the State’s claims from the statute of limitations, and, alternatively, that the State’s claims arising under 10 V.S.A. § 1390, a statute that establishes a state policy that the groundwater resources of the state are held in trust for the public, are not time barred because that statute became effective less than six years before the State filed its complaint. We affirm.

Defendants moved to dismiss the complaint as time-barred under the general six year statute of limitations for civil actions. See 12 V.S.A. § 511. Defendants noted that the Legislature’s ban on MTBE in Vermont was enacted in May 2005. For this reason, defendants argued, the State was indisputably aware of the alleged injury to Vermont’s waters due to MTBE more than six years prior to its June 5, 2014 complaint.

In opposition, the State argued that: (1) its claims, which arise from injury to state lands and public trust resources, are exempt from any limitations period, see 12 V.S.A. § 462; (2) even if a limitations period did apply, the State’s cause of action based on 10 V.S.A. § 1390 accrued on June 9, 2008, when that statute became effective, and the State filed suit within six years of the Legislature’s creation of that new cause of action

(1) 12 V.S.A. § 462

12 V.S.A. § 462 provides: “Nothing contained in this chapter shall extend to lands given, granted, sequestered or appropriated to a public, pious or charitable use, or to lands belonging to the state.” The section appears in chapter 23 of Title 12, which includes the general six-year limitation for civil actions, 12 V.S.A. § 511.

The State argues that this statute relating to “lands belonging to the state” applies to groundwater held by the state in trust for the public. Second, the State contends that the statute’s bar to application of the statute of limitations extends beyond claims of adverse possession or prescriptive rights to claims based on environmental injuries.

Based on the history surrounding its enactment, our cases, the language of the statute, and policy considerations,we conclude that § 462 does not exempt the State’s claims from the statute of limitations because the State’s claims are not the kind of claims contesting property interests in land to which the statute applies.

Although we have never squarely considered the question, our decisions have consistently reinforced the understanding that § 462 was designed to prevent adverse-possession claims with respect to interests in state property, or property dedicated to a public, pious, or charitable use. Our longstanding understanding of § 462 is consistent with the language of the statute itself. Moreover, sound policy considerations reinforce our longstanding interpretation.

We conclude the trial court properly interpreted § 462 as limited to claims of adverse possession (or other claims of property interests arising by prescription). The exemption is thus inapplicable in this case

(2) 10 V.S.A. § 1390

10 V.S.A. § 1390 codifies the Legislature’s recognition that the groundwater of Vermont is a precious, finite, and invaluable resource. The following language of the statute is the basis of the State’s argument here: “The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the State of Vermont . . .” 10 V.S.A. § 1390(5). The effective date of this statute was June 9, 2008.

We conclude that even if § 1390 did create a new cause of action that was retroactively enforceable, that would not empower the State to apply the statute to injuries discovered more than six years prior to its complaint. When the State filed its complaint on June 5, 2014, the general six-year statute of limitations precluded claims arising from injuries that were discovered more than six years before. Even if § 1390 created a new cause of action for the State, and even if the statute authorized retroactive application of this new cause of action—questions we do not decide—the six-year limitation would bar the State’s § 1390 claims to the extent that it relies on generalized harm to the groundwater’s of the state as a whole.


For the above reasons, we affirm the trial court’s determinations that 12 V.S.A. § 462 does not exempt the State’s claims from operation of the applicable statute of limitations, and its conclusion that the State’s claims under 10 V.S.A. § 1390 are not all timely as a matter of law. Affirmed.

Action on a judgment not barred by 8-year statute of limitations, because statute was tolled by acknowledgment and partial payment of the debt.

Flex-A-Seal, Inc. v. Safford, 2015 VT 40 (27-Feb-2015)


REIBER, C.J. Plaintiff appeals from the dismissal of its complaint to renew a judgment.. The trial court found the complaint barred by the statute of limitations, 12 V.S.A. § 506. On appeal, Plaintiff argues that:the statute of limitations was tolled by by Defendant’s acknowledgment and partial payment of her debt. We reverse the trial court’s decision.

The statute as amended in 2010, now provides that “[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after.” 12 V.S.A. § 506.

In October 2002, the court issued a stipulated judgment order pursuant to the parties’ agreement, granting judgment to Plaintiff against Defendant in the amount of $230,000. After plaintiff later filed a motion for trustee process against earnings, the court in November 2004 issued a stipulated order stating the original judgment amount, the judgment amount with interest as of October 28, 2004, and providing for the suspension of post-judgment interest.

In April 2012, Plainiff filed this action to renew its judgment..The court sua sponte questioned if the action was timely filed. The court ultimately rejected Plaintiff's argument that the relevant final judgment for purposes of 12 V.S.A. § 506 was the 2004 stipulated order rather than the 2002 judgment. The court cited Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, where we held a stipulated payment plan was not a new “final judgment” from which a new eight-year statute-of-limitations period began to run. Id. ¶ 18

In light of Ayer v. Hemingway, and Nelson v. Russo, 2008 VT 66, 184 Vt. 550, 956 A.2d 1117 (mem.), the trial court concluded that the common law rule that an acknowledgment of the existence of a debt “has the effect of starting the statute of limitations running anew” no longer applies to judgments. In Nelson, this Court clarified that under 12 V.S.A. § 506, a plaintiff must file a new and independent action to renew a judgment and cannot do so by motion. 2008 VT 66, ¶ 9. The Court reiterated this principle in Ayer, 2013 VT 37, ¶ 15.

Our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts,  Olcott v. Scales, 3 Vt. 173, 178 (1831), like the instant case, involved a plaintiff’s attempt to collect a judgment debt. The Olcott court expressly held that in such cases, the acknowledgement of a debt, in terms that admit it to be due, removes the effect of the statute of limitations. 3 Vt. at 178. In Gailer v. Grinnel, 2 Aik. 349, 1828 WL 1161 (1828), the Court similarly held that, in actions of debt on judgment, an acknowledgment of the debt within the statute-of-limitations period removed the statutory bar. Id. at 354 The Court held that:

The defendant’s liability was fixed by the judgment, and as the statute goes upon the presumption of payment after the lapse of eight years, the acknowledgment of the debt within eight years shows that it has not been paid, and thus, by removing the presumption, takes the case out of the statute. The acknowledgment . . . revives the debt ab initio, and the plaintiff recovers, not on the ground of having a new right of action, but that the statute, by reason of the acknowledgment, does not apply to bar the old one.

Id. at 353

Defendant has neither argued nor briefed the question of whether we should overrule Gailer and Olcott in light of the holdings and rationales of Ayer and Nelson. While we note some possible tension among those decisions, we leave to another day, following complete briefing, any consideration of that issue.

As our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts, we reverse the court’s decision to dismiss and we remand for further proceedings.

Accrual of six-year statute of limitations applicable to childhood sexual abuse was issue of fact for jury.

Clarke v. Abate, 2013 VT 52 (09-Aug-2013)

REIBER, C.J.  In this civil action alleging sexual assault and battery and intentional or reckless infliction of emotional distress by a medical doctor during the course of his treatment of a high school female athlete, plaintiff appeals the superior court’s grant of summary judgment to defendant based on the six-year statute of limitations applicable to childhood sexual abuse. The court’s determination that the limitations period had run as a matter of law before plaintiff filed her lawsuit relied primarily on plaintiff’s statements to police and her deposition testimony concerning her awareness of defendant’s wrongful conduct at the time of the alleged assaults. We conclude that the court erred by determining the limitations accrual date as a matter of law rather than allowing the jury to weigh inferences from the factual record regarding plaintiff’s state of mind and knowledge during the relevant period of time. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.

The applicable statute of limitations, 12 V.S.A. § 522(a), states a civil action for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.

Plaintiff's treatment with defendant ended in August 2002 Plaintiff filed suit on June 4, 2009. The trial court granted summary judgment relying primarily on statements made by plaintiff to police in 2007 and her 2011 deposition testimony concerning her awareness of defendant's conduct at the time of the alleged assaults. The court concluded as a matter of law that plaintiff's cause of action began to accrue when she reached the age of majority because her own statements indicate that she knew or should have known of the assaultive nature of defendant's conduct at the time it occurred.

A court may determine the accrual-date issue only "when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue." Although plaintiff in a statement to investigators, indicated she "definitely" felt something was wrong during the examinations, she also made statements indicating that she was not sure if her concerns were valid and did not receive affirmation of the validity of those concerns from family members. Given plaintiff's at-times equivocating and conflicting statements to the authorities concerning her knowledge and awareness of any wrongful conduct on defendant's part, it was the jury's prerogative to make any inferences from those statements and determine at what point plaintiff knew or should have known that defendant's conduct was assaultive rather than medical in nature.

Given the imbalances of the roles between plaintiff and defendant, as well as the ambiguities and inconsistencies in the statements relied upon by the trial court with respect to the extent of plaintiff's knowledge and understanding of whether the purported treatment was in fact childhood sexual abuse, the trial court erred in dismissing plaintiff's suit as a matter of law.

Statute of limitations. Foreclosure of judgment lien denied because, despite amended judgment, lien expired eight years from original judgment.

Ayer v. Hemingway, 2013 VT 37 (24-May-2013)(Burgess, J.)(Robinson, J., dissenting).

Plaintiffs appeal from the trial court’s order granting summary judgment to defendants in this judgment lien foreclosure case.  Plaintiffs argue that a 2001 judgment had been renewed or revived by a 2006 stipulated amended order, and that the court erred in concluding that their judgment lien had expired. We affirm.

The trial court correctly found that plaintiffs’ judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based.  See 12 V.S.A. § 2903(a). Revival required the filing of a “new and independent action” on the judgment, see 12 V.S.A. § 506, which did not occurred here.  Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). (judgments cannot be renewed by motion, but only by the filing of a “new and independent suit commenced in accordance with Rule 3.” )      

Plaintiffs did not file a new complaint on the judgment.  Instead, they filed a motion for a possessory writ of attachment that led to a stipulated amended judgment order regarding payment of the 2001 debt. This was not a new “final judgment” for purposes of 12 V.S.A. § 2903(a).  The fact that this order might have been appealable does not change this result. Any other holding would create a continually moving statute of limitations. Were we to construe  such post-judgment orders as starting a new limitations period, a party could extend the life of a judgment lien indefinitely by filing motions.  The statute does not contemplate this result, and the need for certainty and predictability in the law compels us to reject such an approach.  The statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits.

Robinson, J. dissenting, cannot concur in the majority's conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. The statute of limitations draws no distinction between "original" and "amended" judgments, and nothing in the language of the statute supports the notion that "judgment" has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903 ("A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based . . . .").

Note:  See Flex-A-Seal, Inc. v. Safford, 2015 VT 40 

Statute of Limitations; discovery occurs and statute accrues when plaintiff "suspects" a claim; economic loss is not always a six-year limit.

 Eaton v. Prior, 2012 VT 54 (Skoglund, J.)

Plaintiff's lawsuit against her former employer and supervisor for sexual assault was dismissed for failure to prosecute. She claims that her ability to prosecute the case was thwarted by a licensed polygraph examiner who determined that she did not tell the truth in responding to questions about the alleged assault. This action claims negligent administration of the polygraph examination,  improper disclosure of the examination results and conspiracy to cover up the misconduct. The trial court entered judgment for defendants on the ground that the suit was barred by the three-year statute of limitations applicable to actions for "injuries to the person," under 12 V.S.A. § 512(4). We conclude that the trial court correctly applied the three-year statute of limitations to bar the claims for emotional distress, but mistakenly failed to consider the applicability of 12 V.S.A. § 511's general six-year limitation period to the claims for economic harm resulting from dismissal of the underlying lawsuit and other alleged economic costs. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

We reject plaintiff's  argument  that plaintiffs were not reasonably aware of a potential cause of action  until they received a professional analysis in November 2006, so that the complaint—filed in October 2009—was timely.  The great bulk of plaintiff's claims were plainly known or suspected well before the receipt of his analysis. The law does not require absolute certainty for the statute to run. See Bull v. Pinkham Eng'g Assocs., 170 Vt. 450, 456, 752 A.2d 26, 31 (2000) (holding that statute did not commence on plaintiff's negligence claim against surveyor until he acquired evidence to "suspect that the southern boundary depicted on the survey" was inaccurate) (emphasis added). There is no reasonable dispute here that the action accrued no later than March 2006. Accordingly, the claims for personal injury were untimely.

Plaintiff next argues the claims for economic harm in the form of lost income and medical expenses are separately governed by 12 V.S.A. § 511, the general six-year statute of limitations applicable in civil actions, and therefore remain timely. Although  this argument was expressly raised in opposition to defendants' motions for summary judgment, the trial court failed to address it. In Fitzgerald v. Congleton, a legal malpractice case,  we held the emotional distress claims were time-barred under the three-year limitations period of § 512 while the claim for costs and expenses was controlled by the general six-year provision of 12 V.S.A. § 511, and therefore remained timely. On the other hand, the mere fact that economic harm is alleged will not invariably invoke § 511's six-year limitation provision where the "gravamen or essence" of the claim remains personal injury. See Rennie v. State, 171 Vt. 584, 587, 762 A.2d 1272, 1276 (2000) (mem.) (holding that, although plaintiff claimed she lost income and other economic benefits from alleged tortious interference, this did not alter the "underlying nature" of the claim as one for personal injuries governed by § 512's three-year limitation period).  As noted, the trial court did not address or resolve this issue. Accordingly, we conclude that the case must be remanded for the trial court to consider whether the claims for economic harm are sufficiently distinct from the claims for emotional distress to be governed by § 511 and therefore remain timely.

How cited

Statute of limitations not tolled by estoppel or acquiescence.

Beebe v. Eisemann, 2012 VT 40 (mem.)

Plaintff appeals from the trial court's dismissal of his medical malpractice action for failing to satisfy the applicable statute of limitations.  Plaintff argues that the Eisemann defendants are equitably estopped from invoking the statute. We affirm.

In  Fercenia v. Guiduli, 2003 VT 50, ¶ 8, 175 Vt. 541, 830 A.2d 55 (mem.) we held that claims of a plaintiff who filed complaint within one day of the expiration of the limitations period, secured a waiver of service within sixty days, but failed to file that waiver in court within sixty days of filing the complaint were barred by statute of limitations. 

All parties agree that the limitations period for plaintiff’s malpractice claims pursuant to 12 V.S.A. § 521 was due to expire on October 9, 2009.  By letter dated September 16, 2009, plaintiff’s counsel proposed to Dr. Eisemann’s counsel and other potential defendants a “time out” agreement, tolling the statute of limitations for ninety days so the parties could pursue settlement.  Although Dr. Eisemann signed off on the agreement, not all of the defendants did.     As a result, plaintiff filed a summons and complaint on October 7, 2009 against all of the defendants in the trial court.  On October 15, 2009, plaintiff’s counsel sent a letter to the defendants’ lawyers informing them that a summons and complaint had been filed in the matter, and requesting that their clients sign and return acceptances of service.  In this letter, plaintiff’s counsel requested that the acceptances be returned at defendants’ “earliest opportunity,” but stated that he would not file the acceptances with the court without notice “so that this lawsuit will not be open to public inspection.” Plaintiff was required to file any waivers of service within sixty days of filing his complaint, December 6, 2009. 

Counsel for Dr. Eisemann signed the acceptance of service on October 20, 2009, but did not return the acceptance to plaintiff’s counsel on January 13, 2010. 

The trial court dismissed the complaint , viewing plaintiff’s request that defendant voluntarily "accept service" as a request for "waiver of service" of summons pursuant to V.R.C.P. 4(l) that was untimely filed.

On appeal, plaintiff does not argue that he legally satisfied the statute of limitations, but argues that equitable estoppel precludes defendant from invoking the statute of limitations.  Specifically, plaintiff argues that “estoppel by acquiescence” should have prevented Dr. Eisemann from asserting the statute of limitations because he claims Dr. Eisemann was aware that the parties were operating under a de facto agreement to ignore the time period within which plaintiff was to file the waiver of service, and, in effect, to toll the statute of limitations indefinitely while the parties negotiated.

Estoppel-by-acquiescence arises where the party being estopped is silent in the face of a duty to speak.  Assuming that estoppel-by-acquiescence is a valid theory, we affirm the trial court’s ruling because Dr. Eisemann was under no “duty to speak” at any time prior to the expiration of plaintiff’s deadline for filing the waivers.  He had no duty to affirmatively remind plaintiff to secure and file the acceptance within the period prescribed by the Rules of Civil Procedure. Plaintiff’s failure to enter into a tolling agreement, timely file Dr. Eisemann’s waiver of service, seek judicial relief from the applicable deadlines, or effectively serve Dr. Eisemann within the limitations period via other means cannot be cured by Dr. Eisemann’s silence.

[Filed 18-Jun-2012]

Three year statute of limitations for medical malpractice applies, notwithstanding argument that cancer is a “noxious agent” with prolonged latent development.

Campbell v. Stafford , 2011 VT 11 (mem.)

The trial court concluded that plaintiff’s claim was time-barred under the three-year limitation set forth in 12 V.S.A. § 521. Plaintiff appeals the trial court’s denial of her motion for reconsideration and motion to amend.  We affirm.

 

Plaintiff filed her malpractice suit over three years of last date on which Defendant treated plaintiff without ordering additional testing or treatment for thyroid cancer.  After judgment had already been entered on statute of limitations grounds,  Plaintiff sought to amend  her complaint to allege the theory that her cancer was a noxious agent, and that the claim was actionable under 12 V.S.A. § 518..  But  this “claim” added nothing.  12 V.S.A. § 521, as opposed to 12 V.S.A. § 518(a), controls this case.

In order for 12 V.S.A. § 518(a) to apply, plaintiff’s cancer would have to be considered a “noxious agent.”  An “agent” is something that acts upon the body, causing a disease or illness such as cancer.  Though the cancer in this case may have had a prolonged development period, it was not itself a “noxious agent”. Given the failure of plaintiff’s amended complaint,  Defendants were entitled to summary judgment as a matter of law. 

Statute of limitations: Cause of action that accrues after decedent’s death is not limited under §557(a) to two years.

Benson v. MVP Health Plan , 2009 VT 57 (Skoglund, J.)

Brian Benson, as administrator of Alan Benson’s estate, appeals from a Windsor Superior Court order dismissing his suit against decedent’s insurer, MVP as barred by the two-year limitations period set forth in 12 V.S.A. § 557(a). We reverse and remand. We hold that the limitation period set forth in § 557(a) does not apply to causes of action that accrue to the estate after a decedent’s death.

That statute reads as follows:

"If a person, by or against whom an action may be brought, dies before the expiration of the time within which such action may be commenced as provided by this chapter or dies within thirty days after the expiration of such times, the period of limitation as to such action shall cease to operate at the date of his death. After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or administrator within two years, and not after."

A cause of action does not accrue until each element of the cause of action exists. A cause of action for breach of contract accrues when the breach occurs, and a cause of action against an insurance company for bad faith accrues when the company errs, unreasonably, in denying coverage.

Benson died on October 18, 2002. The administrator was appointed on December 2, 2002. The administrator filed suit on August 30, 2007, alleging that MVP breached the contract when it failed to pay a valid claim submitted by the administrator and repeatedly refused to respond to the administrator’s grievances and requests for information and relief. The complaint alleges bad faith on the grounds that MVP denied the claim without a reasonable basis. Assuming these allegations to be true, the estate’s causes of action accrued after the decedent’s death.

Based on the statutory language quoted above, MVP argues that § 557(a) applies to causes of action that accrue after death because a person who dies before a cause of action accrues necessarily dies before the expiration of that action’s limitations period. This clever reading is flawed, however, because the plain language of § 557(a) establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime; it does not apply to causes of action by or against an estate that accrue after the decedent’s death.

Accordingly, the trial court erred in concluding that the estate’s claim was barred by § 557(a).