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

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

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

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

 

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

 

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

 

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

 

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

Affirmed.

How cited

SCOVT reverses order granting Anti-SLAPP motion because the speech underlying the claim was not made in connection with a public issue; also holding the failure to take interlocutory appeal did not preclude challenge to the order. Affirms summary judgment dismissing defamation claim, holding - even if summary judgment was based on discovery sanction precluding use of evidence =- no special finding was required to support the discovery sanction, and that plaintiff in any event failed to demonstrate evidence of pecuniary loss specifically attributable to the claim or other actual harm, as required to support a defamation claim.

  Polak  v. Ramirez-Diaz, 2025 VT 9 [2/28/2025]

EATON, J.   Plaintiffs appeal the trial court’s order granting defendants’ special motion to strike plaintiffs’ claims of defamation, malicious prosecution, and intentional infliction of emotional distress (IIED) pursuant to Vermont’s anti-SLAPP law, 12 V.S.A. § 1041.  We conclude that the court erred in granting the special motion to strike because the speech underlying the affected claims—defendants’ allegedly false statements to police and the court accusing plaintiffs of criminal activity—was not made in connection with a public issue.  We therefore reverse the order granting the motion to strike and remand for further proceedings on the claims that were stricken. 

Plaintiffs also challenge a discovery sanction imposed by the trial court for plaintiffs’ failure to respond to defendants’ interrogatories and requests for production related to their remaining defamation claim, arguing that it amounted to dismissal without the requisite findings.  However, we hold that the court acted within its discretion in imposing the discovery sanction and affirm that order and the subsequent order awarding summary judgment to defendants on the related defamation claim.  

Despite court order plaintiffs did not timely produce the requested discovery, The court denied defendants’ request for dismissal but prohibited plaintiffs from introducing at trial any evidence that plaintiffs should have disclosed in response to defendants’ discovery requests. .” Citing John v. Med. Ctr. Hosp. of Vermont, Inc., 136 Vt. 517, 519,  (1978), plaintiffs argue this order effectively amounted to a dismissal of the defamation claim without sufficient findings. But our cases carefully distinguish imposition of a sanction of dismissal or default from a sanction that effectively results in dismissal. No special findings are required when there is no outright dismissal or default.  Stella ex rel. Estate of Stella v. Spaulding, 2013 VT 8, ¶ 22,  State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 22, The sanction precluding plaintiff from offering certain evidence, was not a dismissal, and no special findings were required.  Stella, 2013 VT 8, ¶ 22.

 Plaintiffs failed to respond to defendants’ requests or the court’s orders, despite having had nearly nine months to do, and the court did not abuse its discretion by prohibiting them from submitting evidence relating to those discovery requests.  

 The court’s decision awarding summary judgment on the defamation claim, is supported by the record. Plaintiffs failed to demonstrate that they had evidence to support their defamation claim.   “To survive a defendant’s motion for summary judgment, the plaintiff must respond with specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima facie case.”  Gates v. Mack Molding Co., 2022 VT 24, ¶ 14, 216 Vt. 379, 279 A.3d 656; Cate v. City of Burlington, 2013 VT 64, ¶ 11, 194 Vt. 265, 270, 79 A.3d 854 (“A party opposing summary judgment may not rest on allegations or denials, but must demonstrate, with citations to the record, that a fact is genuinely disputed.”). 

The court granted summary judgment to defendants on the defamation claim, noting that in their response to defendants’ statement of undisputed facts, plaintiffs did not provide specific citations to parts of the record that demonstrated a genuine dispute as to any factor  identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the claim, or other actual harm, as required to support a defamation claim. Even when they finally responded to defendants’ interrogatories, they did not identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the remaining claim, or other actual harm. Thus, summary judgment on the defamation claim was appropriate.

Plaintiffs argue that because defendants did not seek an immediate appeal from the trial court’s decision on the anti-SLAPP motion.  defendants’ challenge to the anti-SLAPP decision is untimely. Defendants rely on 12 V.S.A. § 1041(g), which states: “An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.”

 

Viewed in context, § 1041(g) clarifies that, for purposes of Vermont law, an order granting or denying an anti-SLAPP motion is not a collateral final order.  Instead, it is an interlocutory order that must satisfy the Rule 5 criteria to be immediately appealed. . However, § 1041(g) does not state that an order resolving a motion to strike is only appealable under Rule 5, and we decline to read such a requirement into the statute. 

Absent an express indication of a contrary intent from the Legislature, we conclude that a timely appeal from a final judgment preserves a challenge to an interlocutory order resolving an anti-SLAPP motion.  We therefore have jurisdiction to consider plaintiffs’ claims

The trial court’s May 13, 2024, order awarding partial summary judgment is affirmed.  The trial court’s August 17, 2021, order granting defendants’ motion to strike is reversed and the matter is remanded for further proceedings on plaintiffs’ remaining claims.  

Legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim

Massucco v. Kolodziej, 2024 VT 76 (filed 11/27/2024) (Affirms orders reforming deed and finding slander of title, holding as a matter of first impression that legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.)

WAPLES, J.   Defendants James and Barbara Kolodziej discovered that a parcel of land near their property was seemingly omitted from plaintiff Sarah Massucco’s deed.  They arranged for the heirs of a previous owner of the land to deed that parcel to them.  Defendants neither talked to plaintiff—who they saw use the parcel—nor confirmed that the heirs owned the parcel.  After recording their own deed, defendants informed plaintiff that they owned the parcel and asked her to remove her belongings.  Plaintiff sued.  The trial court granted plaintiff’s claim for deed reformation on summary judgment and concluded Mr. Kolodziej slandered plaintiff’s title after a bench trial.  Defendants appeal and we affirm. 

To reform her deed, plaintiff must demonstrate, beyond a reasonable doubt, that the deed fails to express the real agreement between seller and buyer due to a mutual mistake in reducing the agreement to writing.  Cassani v. Hale, 2010 VT 8, ¶ 17, 187 Vt. 336, 993 A.2d 422.  “Mutual mistake is shown if the evidence establishes that the seller intended to sell and the buyer intended to purchase a different piece of land than that described in the deed.”  LaRock v. Hill, 131 Vt. 528, 530, 310 A.2d 124, 126 (1973).  The court may reform a deed to what “the deed and extrinsic evidence indicate [the parties] must have intended.”  Cassani, 2010 VT 8, ¶ 19.  “Intent is rarely proved by direct evidence; it must be inferred from a person’s acts and proved by circumstantial evidence.”  State v. Langdell, 2009 VT 125, ¶ 9, 187 Vt. 576, 989 A.2d 556 (mem.) (quotation omitted).

 

 Defendants contend that the language of the Leisey deed precludes summary judgment. But  Plaintiff does not dispute that the Leisey deed facially omitted the disputed parcel.  Her claim is that the deed does not reflect the true agreement between the Adamses and Mr. Leisey.  The undisputed text of the deed alone does not bar a grant of summary judgment on a reformation claim.

 Even if Mr. Leisey was hazy on the specific details of the parcel’s boundary the facts set forth by defendants do not create a genuine dispute of fact for trial.  The unrefuted deposition testimony demonstrated that the Adamses intended to convey their whole remaining parcel to Mr. Leisey, Without any disputed material facts presented, the trial court appropriately granted summary judgment on plaintiff’s claim for reformation of the Leisey deed and the deeds in her line of title. 

To prove slander of title, plaintiff must show that: (1) she has a “transferrable ownership interest capable of disparagement,” (2) defendants published a false statement concerning plaintiff’s title; (3) defendants acted with malice, and (4) the statement caused special damages.  Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11, 189 Vt. 442, 23 A.3d 663.[1] ‘The essence of the tort is the publication of an assertion that is derogatory to the plaintiff’s title to property in an effort to prevent others from dealing with the plaintiff.”  Id. ¶ 8 (quoting Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem.)).[2]

 

(1)

 

There is a split among the states as to whether land acquired through adverse possession can support a slander-of title claim. We conclude that title by adverse possession “is a sufficient interest in property for a claimant to maintain an action for slander of title.”  Colquhoun v. Webber, 684 A.2d 405, 409-10 (Me. 1996). In Colquhoun, the Maine Supreme Judicial Court looked to the Restatement (Second) of Torts, which provides that a legally protected interest in land “may be disparaged if the interest is transferable.” . Restatement (Second) of Torts § 624 cmt. c (1977).  Because in Maine an adverse possessor has good title after having met the requirements for adverse possession, that title can sustain a slander-of-title claim even before judicial confirmation of the title.  Colquhoun, 684 A.2d at 410.  We hold the same here.  .  Plaintiff thus had the title necessary to sustain her slander-of-title claim, even before the court order reforming the Leisey deed becomes final. 

(2)

The trial court concluded that the recording of the deed constituted publication of a false statement concerning plaintiff’s title.  We agree.  By recording a deed that amounted to a false claim of ownership of the disputed parcel, Mr. Kolodziej published a false statement concerning plaintiff’s title.

(3)

Malice in a slander-of-title action requires “conduct manifesting personal ill will, evidencing insult or oppression, or showing a reckless or wanton disregard of plaintiff’s rights.”  Though the court found that Mr. Kolodziej “did not have personal ill will” towards plaintiff, he “acted with reckless disregard of the possibility that she had a claim to the disputed property.”  --The undisputed evidence demonstrates that Mr. Kolodziej located a parcel of land where the deeds in the land records did not comport with town maps or with plaintiff’s usage of the land.  He then arranged to have the parcel deeded to himself and his wife without speaking to the person who he saw had been using the.This evinces a “reckless disregard” for plaintiff’s rights.. The trial court applied the correct legal standard, and we see no error in the conclusions it drew.

(4)

We have never clarified what might constitute special damages for a slander-oftitle claim in Vermont.  We have affirmed dismissal of a claim of slander of title for lack of evidence tying “any damages to the alleged slander.”  Gardner v. West-Col, Inc., 136 Vt. 381, 387, (1978) .  We have also squarely held that pecuniary losses from a lost sale of the property at issue suffice to establish special damages.  Wharton, 2003 VT 19, ¶¶ 15, 18.  We must now decide whether evidence of damages in the form of legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.  We conclude that they are.

Fees expended in prosecuting the slander-of-title action are not recoverable as special damages in that action, but the costs of actions taken to clear a plaintiff’s title and such other expenses that are reasonably necessary to counteract the disparagement” constitute “special damages for which the tortfeasor should bear liability.

 

We affirm the trial court’s grant of summary judgment to plaintiff on her claim for reformation of the deeds in her line of title.  We further conclude that her reformed deed relates back to the grant of the original deed, and that plaintiff’s interest in the disputed parcel can sustain her slander-of -title claim even before judicial confirmation of the deed reformation becomes final.  Finally, we conclude that attorney’s fees and costs expended in clearing her clouded title constitute the special damages necessary to sustain plaintiff’s slander-of-title claim.  

Affirmed. 

---

SCOVT NOTEs Re Elements of Slander of Title in Vermont precedent:

[1] Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11 (“To prove slander of title, plaintiff must show that: (1) defendants published a false statement concerning plaintiff's title; (2) the statement caused special damages; and (3) defendants acted with malice. Wharton v. Tri-State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem._) . . . Whether a statement concerns a person's title revolves around whether it affects that person's ability to make deals with others regarding the property disparaged. Wharton, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531. In other words, one claiming slander of title must have a transferrable ownership interest capable of disparagement. Restatement (Second) of Torts § 624 cmt. c ("Any kind of legally protected interest in land, chattels or intangible things may be disparaged if the interest is transferable and therefore salable or otherwise capable of profitable disposal.").)

 

[2] Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14(“The elements of slander of title as a cause of action have not been clearly laid out in Vermont. The tort has been recognized by this Court, however, first in a nineteenth century case in which we declared that we had jurisdiction over claims for slander of title, Sherman v. Champlain Transportation Co., 31 Vt. 162 (1858), and next in a more recent case where we held that an essential element of the cause of action for slander of title is special damages. Gardner v. West-Col, Inc., 136 Vt. 381, 387, 392 A.2d 383, 386 (1978). The essence of the tort is the publication of an assertion that is derogatory to the plaintiff's title to property in an effort to prevent others from dealing with the plaintiff. See Prosser and Keeton on Torts § 128, at 967 (5th ed.1984). To prove slander of title, a plaintiff must prove that a defendant falsely published a statement concerning plaintiff's title that caused special damages to the plaintiff and that defendant acted with malice. Restatement (Second) of Torts §§ 623A, 624 (1977)”)

SCOVT holds that the denial of summary judgment based on the sufficiency of the evidence is not subject to appellate review after a trial on the merits.

The Lofts Essex, LLC, v. Strategis Floor Décor Inc., 2019 VT 82 [filed 11/8/2019]


CARROLL, J. Plaintiffs appeal the trial court’s pretrial denial of summary judgment and the court’s final decision ruling in favor of defendant. We conclude that the trial court’s pretrial denial of summary judgment is not reviewable and affirm the final decision granting judgment to defendant.

“[A] party generally cannot appeal from the pretrial denial of a motion for summary judgment.” Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 69, ¶ 14, 199 Vt. 289, 123 A.3d 393 (emphasis added). “Once trial begins, summary judgment motions effectively become moot, and the trial court’s judgment on the verdict after a full trial on the merits supersedes the earlier summary judgment proceedings.” Id. (alterations and quotation omitted).

As is often the case, however, there is an exception to this general rule. As the Second Circuit has explained: A critical distinction exists between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide. Where a motion for summary judgment based on an issue of law is denied, appellate review of the motion is proper even if the case proceeds to trial. Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004).

We conclude that the trial court’s denial of summary judgment here is not reviewable because it was decided on sufficiency-of-the-evidence—not legal—grounds. The trial court denied the plaintiffs’ motion for summary judgment because, although the plaintiffs had produced “compelling evidence that the [spots] must be due to a manufacturing issue,” defendant “ha[d] come forward with sufficient evidence to create a genuine dispute as [their] cause.”

Because the trial court’s denial of summary judgment was based on the sufficiency of the evidence, it is not subject to appellate review after a trial on the merits.

SCOVT NOTE.

In Lofts Essex the Court announces that a previously recognized rule about preservation of error has an exception that does not apply to the facts of the case.

This begs the question as to the scope of the exception and whether, as a practical matter, there is any  case to which the general rule requiring renewal at trial of summary judgment issues does not apply.

This case, like other Vermont decisions rejecting the applicability of  proposed rules that the Court has not adopted,  opens new fields for advocacy. Compare Mead v. W. Slate, Inc., 2004 VT 11, ¶ 20, 176 Vt. 274, 284, 848 A.2d 257, 264 (2004) (Assuming without deciding that Vermont follows “substantial certainty” rule in other States (as opposed to specific intent to injure as necessary basis to abrogate workers compensation immunity), holding that the evidence was insufficient to support a finding that defendants knew to a substantial certainty their actions would result in injury to plaintiff.); Vincent v. DeVries, 2013 VT 34, ¶ 25, 193 Vt. 574, 588–89, 72 A.3d 886, 897 (2013) (Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims, holding that the subject of defendant's representation of plaintiff was not of such a personal and emotional nature that it would support recovery of emotional distress damages).

On one hand the opinion can be read to suggest the general rule is a narrow and  applies only to summary judgment denials based on the sufficiency of evidence.  On the other hand, to the extent  the exception is grounded  in federal law, the opinion can be read  to say the exception is a narrow one, for "pure" questions of law only. [See update below]

The seminal  Second Circuit case denying post-trial review of summary judgment denials  is   Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130- 31 (2d Cir.1999). (Denial of a summary judgment motion is not ordinarily reviewable on appeal from a final judgment entered after trial on the merits). According to this case, the appropriate procedure for appeal of a denial of a motion for summary adjudication is that (1) the party may petition for the right to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b); or (2) if the case proceeds to trial, the party may make and renew motions pursuant to Rule 50 for judgment as a matter of law and appeal the district court's denial of that motion. Massey-Ferguson Inc., 170 F.3d at 132.

In a later case, the Second Circuit held that the rule that the denial of summary judgment may not be appealed after full trial on the merits, “does not apply where the district court's error was purely one of law.” Schaefer v. State Insurance Fund, 207 F.3d 139 (2d Cir. 2000).

In 2011, The U.S. Supreme Court explained that once a case proceeds to trial the “full record developed in court supersedes the record existing at the time of the summary-judgment motion” and appeared to adopt a blanket rule precluding the Schaefer pure-error-of-law exception.  Ortiz v. Jordan, 562 U.S. 180, 183–84, (2011)  (“May a party, as the Sixth Circuit believed, appeal an order denying summary judgment after a full trial on the merits? Our answer is no.”). 

In the wake of Ortiz, some federal appellate courts have cited Ortiz as unqualifiedly answering that a party may never, after a full trial on the merits, appeal an order denying summary judgment,  Other federal appellate courts, including the Second Circuit  distinguish between denials based on genuine issues of material fact and denials based on legal conclusions. Joan Steinman, The Puzzling Appeal of Summary Judgment Denials: When Are Such Denials Reviewable?, 2014 Mich. St. L. Rev. 895, 918 (2014) ( critiquing  Ortiz and arguing that appellate review should be allowed of summary-judgment denials after trial, when they rest on a question of law).

The Second Circuit, in dictum at least, recognizes that the “the pure error of law” exception of  Schaefer  continues as an  exception to  the Ortiz general rule  that an order denying summary judgment is not reviewable after a full trial on the merits. Stampf v. Long Island R.R., 761 F.3d 192, 201 n. 2 (2d Cir.2014).   The Stampf court noted references in Ortiz distinguishing  cases that “present purely legal issues capable of resolution with reference only to undisputed facts.” Id.

This resonates with Vermont’s definition, in another context, of a “pure” question of law, as one that “does not depend upon factual distinctions and does not require review of the record.”  In re Estate of Johnson, 158 Vt. 557, 559 (1992)

Thus if the Second Circuit is the model for Vermont practice, the exception to the preservation-at-trial requirement  is a limited one based on the rarely occurring “pure" question of law.

UPDATE.  Since this scovtnote was written, the U.S Supreme Court resolved the conflict in the circuits consistent with Second Circuit  precedent and  held that a post-trial motion under Rule 50 is not required to preserve for appellate review a "purely legal issue" resolved at summary judgment.  Dupree v. Younger (05/25/2023) (citing Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004))

SCOVT affirms summary judgment that neither landlord nor guest of tenant/dog-owner owed a duty to passerby injured when pit bull escaped because they had no "reason to know" that the dog in question posed an unreasonable risk

Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores , 2018 VT 80 [filed 8/10/2018]

REIBER, C.J. In this negligence action, we consider whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant’s pit bulls to a third person outside of the landlord’s property. We conclude that plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirm.

A landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. To survive summary judgment on their negligence claim against landlord under the above rule, plaintiffs had to present admissible evidence from which a jury could conclude that at the time of entering the lease, landlord knew or had reason to know the tenants’ dogs posed an unreasonable risk to persons outside the land. Plaintiffs did not meet this burden.

Liability under § 379A turns on whether a landlord “knew or had reason to know” at the time of the lease that the particular animal in question is abnormally dangerous. the phrase “reason to know” does not imply a duty to investigate: Restatement (Second) of Torts § 12, cmt. a. Landlords are not obligated to conduct background checks on tenants’ pets.

A dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm,. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Assuming for the purpose of summary judgment that the jury could find the guest was acting as the dogs’ keeper, plaintiffs’ negligence claim against him still fails, for the same reason as their claim against the landlord: they have not shown that the guest knew that the dogs posed a threat to anyone. Plaintiffs have failed to present evidence from which a reasonable jury could conclude that defendant knew or had reason to know that the dogs were a probable source of danger, such that he owed a duty to third persons to restrain them. Nor have they demonstrated that he voluntarily undertook to restrain the dogs.

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 Reverses summary judgment in will contest because of conflicting evidence as to whether testator intended the will to be a conditional or absolute will

In re Holbrook, 2017 VT 15 

REIBER, C.J. The question presented in this will contest is whether the trial court correctly determined on summary judgment that the testator intended a last will and testament which she executed on the eve of surgery to be absolute rather than contingent on her surviving the surgery. We conclude that summary judgment was premature in this case because material factual issues remained in dispute concerning the testator’s intent, and therefore reverse.

The court found that neither of the competing inferences from the evidence was "more compelling than the other." and concluded that "the presumption against intestacy" must control, thus precluding a construction of the will as conditional.

It is correct that there is a general reluctance in estate law to find intestacy, hence the general preference for a clear expression of contingency. But when the evidence is in conflict on a genuine, material issue of fact—in this case whether testator intended the will to expire or to remain in effect after she survived her surgery—the usual and proper course is not to ignore that evidence as "ambiguous" but to deny the motion for summary judgment and permit the case to proceed to trial, where the trier of fact may weigh all of the evidence, assess the credibility of the witnesses, and ultimately resolve the factual dispute. The court could not rely on "presumptions."

Because the parties here offered conflicting evidence as to whether testator intended the will to be a conditional or absolute will, the case must be remanded for a trial to resolve that issue.

 Reversed and remanded

Preservation of error: summary judgment issues must be renewed at trial.

Stratton Corp. v. Englebert Construction, Inc., 2015 VT 69 [Filed May 1, 2015]

This case stems from a condominium construction project in Stratton, Vermont. Owner and developer, Stratton Corporation and Intrawest Stratton Development Corporation (collectively "developer"), sued the project's general contractor Engelberth Construction, Inc., who in turn filed a third-party claim against subcontractor Evergreen Roofing Company. A jury found  that Evergreen Roofing breached its subcontract with Engelberth Construction, and that Evergreen Roofing was obligated to indemnify Engelberth Construction. On appeal, Evergreen Roofing  argues that the court erred in denying a pretrial motion for summary judgment filed by Engelberth Construction on various issues, including  whether proof of non-insurance or lack of availability of insurance coverage was a prerequisite to developer's recovery against Engelberth. (the CIP issue).We conclude that Evergreen Roofing failed to preserve its argument, and we therefore affirm.

The  issues raised by Evergreen Roofing are not properly before us. First, a party generally cannot appeal from the pretrial denial of a motion for summary judgment. This is because "[o]nce trial begins, summary judgment motions effectively become moot,"  and the trial court's "judgment on the verdict after a full trial on the merits . . . supersedes the earlier summary judgment proceedings."  Evergreen Roofing provides no legal authority to support any exception to this general rule.

Second,  Evergreen Roofing  did not raise the CIP issue at trial. It did not object to the exclusion of CIP evidence; it did not object to the jury instructions; and it did not move for judgment as a matter of law. Evergreen Roofing's failure to properly raise the CIP issue at trial precludes our review of this issue on appeal. 

SCOVT denies summary judgment - even though non-movant failed to file statement of disputed fact - because moving party’s statement itself showed material facts were in dispute.

Stone v. Irasburg, Town of 2014 VT 43 (25-Apr-2014)

CRAWFORD, J. Plaintiff sued the Town of Irasburg alleging that the selectboard had acted unlawfully in ordering her, as town treasurer, to raise her bond to $1,000,000. She sought monetary damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process. In several different orders, the trial court granted the Town summary judgment on all counts. Plaintiff appealed. We affirm in part, and reverse and remand in part.

Like the rules concerning default judgment, the procedure of Rule 56 “should be liberally construed in favor . . . of resolving litigation on the merits, to the end that fairness and justice are served.”

The court based its decision largely on procedural grounds, concluding that plaintiff had failed to adequately oppose summary judgment. In effect, the court sanctioned plaintiff with dismissal of the case for failing to appropriately reference the record in her response to summary judgment even though the record in this case, clearly demonstrates the presence of contested facts. We conclude that the procedural grounds for granting the motion were inadequate.

Vermont Rule of Civil Procedure 56(c), as amended effective January 23, 2012, sets out a mandatory procedure for demonstrating that “a fact cannot be or is genuinely disputed.” V.R.C.P. 56(c)(1). The party asserting that a fact is not disputed must file “a separate and concise statement of undisputed material facts” with citations to the record. V.R.C.P. 56(c)(1)(A). The rule allows an adverse party to file an opposition and statement of disputed facts, and requires a party asserting a fact is genuinely disputed to support the assertion by filing a statement of disputed facts supported by citation to record. V.R.C.P. 56(b), (c)(1) (a).

The Town was the moving party. Its Rule 56(c) statement of undisputed facts was very brief. The Town attached plaintiff’s affidavit and her July 1, 2010 letter. There is no concise statement of the undisputed facts which would support the Town’s argument that plaintiff was neither defamed nor forced unlawfully out of office.

Plaintiff did not file a statement of disputed facts with reference to the record or in some other way show that the materials cited by the Town did not establish the absence of a factual dispute.

The court ruled that plaintiff as the nonmoving party had failed to properly demonstrate issues of material fact because her response to summary judgment was not supported by affidavit, deposition or other sworn testimony.

Grant of summary judgment to the Town based solely on plaintiff’s failure to adequately respond was error for two main reasons. First, because the Town failed to provide a proper statement of undisputed facts with citations to the record demonstrating an absence of any controverted material fact, the burden did not shift to plaintiff to show the existence of disputed facts. See Pierce v. Riggs, 149 Vt. 136, 138, 540 A.2d 655, 656-57 (1987) (explaining burden does not shift to nonmoving party until moving party meets its burden of showing absence of dispute over material fact).

Second, plaintiff was not required to submit new evidence in support of her opposition where evidence already in the record supported her position. See V.R.C.P. 56(c)(3) (allowing court to consider material in record even if not cited in required statement of facts). Since plaintiff’s critical evidence—the July 1, 2010 letter and plaintiff’s affidavit—were both attached to the Town’s motion for summary judgment, it was readily apparent that disputed issues of fact existed between the parties.

***

Note. Decades ago the Court held "the failure to respond does not require an automatic summary judgment; rather, two requirements must be met: (1) the supporting materials must be both formally and substantively sufficient to show the absence of a fact question, and (2) summary judgment must be appropriate in the sense that the moving party is entitled to judgment as a matter of law." Miller v. Merchants Bank, 138 Vt. 235, 238, 415 A.2d 196, 198 (1980). The new Rule 56 now gives several options when a party fails to properly support or address a fact:

(e) Failing to Properly Support or Address a Fact. -- If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or

         (4) issue any other appropriate order.

V.R.C.P.56(e).

Torts. Hospital had no duty to prevent assault on patient by police; but nurse committed battery if nurse drew blood at police request without patient consent.

O'Brien v. Synnott, 2013 VT 33 (17-May-2013)(Robinson, J.)  


Plaintiff Kelley S. O’Brien sued defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for injuries he suffered when allegedly assaulted by police officers after defendants negligently allowed those officers unrestricted access to him in the hospital while he was recovering from surgery, and for drawing his blood at the request of law enforcement officers and without his consent. The trial court granted defendants summary judgment, concluding that it was not reasonably foreseeable that the police officers would harm plaintiff if allowed unsupervised access, and that nurse had plaintiff’s apparent consent to draw the blood. We affirm in part and reverse in part.

Defendants’ duty to protect plaintiff does not extend to protecting him from attacks by third parties that are not reasonably foreseeable. See also Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take precautions against a sudden attack from a third person which [the defendant] has no reason to anticipate”); id. § 320 (explaining that actor has duty to control conduct of third persons only when actor “knows or should know of the necessity and opportunity for exercising such control”). Considering the facts in the light most favorable to plaintiff, a law enforcement officer requested an evidentiary sample of his blood in the emergency room, and plaintiff refused. The officer said he would get a warrant. Plaintiff was taken from the emergency room for emergency surgery. While he was in the post-anesthesia care unit (PACU) recovering from the surgery, his nurse left the area, allowing a group of police officers the opportunity to access plaintiff’s room. The officers asked plaintiff for a blood sample. When plaintiff refused, they held him down, covered his mouth, and tried, unsuccessfully, to take his blood by force. We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack plaintiff if left unsupervised.

A provider commits battery if the provider performs a procedure without the patient’s consent. Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. Later, nurse returned and drew plaintiff’s blood. Nurse did not disclose to plaintiff her purpose for drawing blood, or that the blood draw was not in connection with medical treatment for plaintiff’s benefit. Nurse drew the blood for the purpose of providing a sample of plaintiff’s blood to the police. Plaintiff did not object to her drawing the blood, but also did not consent to her drawing his blood for a nonmedical purpose. In the absence of undisputed evidence that plaintiff knew or should have understood the nonmedical purpose of the blood draw, the fact that he did not object does not support the conclusion that his conduct amounted to apparent consent. Defendants argument relies on inferences in defendants’ favor that we cannot draw at the summary judgment stage.

We reject Defendant’s policy argument that medical providers should be immune from civil liability for battery when they draw a blood sample from an individual suspected of driving under the influence at the request of law enforcement officers without regard to whether the individual consents to the blood draw. The Legislature has expressly limited the liability of medical providers in certain circumstances related to blood draws and individuals suspected of driving under the influence, inapplicable here, but has not expressly required medical personnel to comply with law enforcement requests to draw blood, and has not immunized those providers from liability for complying. Without legislative action we conclude that when a patient is conscious and the authority to draw blood depends upon actual consent, the police officers’ request does not protect defendants from liability for drawing the blood without plaintiff’s consent.

Probate appeal. Statement of questions does not limit superior court. Summary judgment is always provisional until final judgment is entered.

In re Estates of Allen, 2011 VT 95 (Dooley, J.)

This case originates from a quiet-title action in probate court by defendant Richard Rupe and his father laying claim to certain mineral rights by way of adverse possession.  Defendant and his father appealed the probate decision to the superior court, which, after first granting summary judgment in favor of plaintiff on certain issues, ultimately dismissed plaintiff’s claim to the mineral rights and awarded all rights, title, and interest to defendant. Plaintiff now appeals this superior court judgment, arguing  the court exceeded its authority by considering more than the issues raised in the statement of questions submitted on appeal from the probate court and resolved by summary judgment.  We affirm. 

 Plaintiff’s main argument on appeal is that, under Rule 72, the superior court had no authority to require plaintiff’s to prove an interest in the mineral rights by adverse possession because the court granted summary judgment for plaintiff on defendant’s four questions. The summary judgment decision was an interlocutory order.  If plaintiff believed that the summary judgment meant that he had prevailed fully on the merits, he should have sought entry of judgment under Vermont Rule of Civil Procedure 58.  See Powers v. Hayes, 170 Vt. 639, 640, 751 A.2d 781, 782 (2000) (mem.) (stating that summary judgment is not entry of judgment as required for a final judgment).  As it was the summary judgment did not preven the trial court from requiring him to prove his adverse possession claim.

A case such as this is a hybrid of an appeal from the probate court and a de novo proceeding that is conducted as if the probate court proceeding never occurred.  The statement of questions required by Rule 72(c) has a limited function.  Recently, we have held that while a list of certified questions is mandatory, it only “serves to focus, but cannot limit, the issues for the court.”  In re Estate of Doran, 2010 VT 13, ¶ 14, 187 Vt. 349, 993 A.2d 436.

We hold that the superior court acted correctly in determining that plaintiff had no interest in the mineral rights.

Affirmed.

Summary judgment against movant: Conclusory affidavits insufficient.

In re Shenandoah LLC, 2011 VT 68 (Burgess, J.) (Skoglund, J., joined by Justice Dooley dissenting.)

          It is well-established that ultimate or conclusory facts and conclusions of law cannot be utilized on a summary-judgment motion. 10 V.S.A. § 6001(14)(A)(iv) presumes parents are “persons,” for jurisdictional purposes “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”. Appellants' motion for summary judgment provided no information to the court and no actual documentation to support their conclusory statements that they had no “control” over the Trust’s activities and derived no “benefit” from the Trust’s land development activities.  We therefore affirm the Environmental Court’s decision that there was no genuine issue of fact as to whether the parents benefited from their children’s trust’s subdivision.
          The dissenters agree that the majority that the affidavits contained only “ultimate or conclusory facts and conclusions of law,” but would not affirm summary judgment against the movant, merely because it had not properly supported the motion.  The Environmental Court, having found the evidence offered by appellants insufficient for a determination on the material fact in issue, should have simply denied summary judgment. To complicate the matter before the Environmental Court, there was no adversarial party to oppose summary judgment.  Instead of requesting further evidence, the court summarily decided the case against the movant, essentially holding that the proffered facts were so lacking as to prove their own negative. Appellants should have been allowed to go forward with their proof.