Jeffrey Rivard v. Windham State Attorney and Dana John Nevins

VERMONT SUPREME COURT Case No. 25-AP-152
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SEPTEMBER TERM, 2025

Jeffrey Rivard* v. Windham State Attorney } APPEALED FROM:
and Dana John Nevins }
} Superior Court, Windham Unit,
} Civil Division
} CASE NO. 24-CV-04322
Trial Judge: Rachel M. Malone

In the above-entitled cause, the Clerk will enter:

Plaintiff appeals a civil division order dismissing his case based on claim preclusion. We
affirm.

In 2023, plaintiff filed suit against Deputy State’s Attorney Dana Nevins, the Windham
County State’s Attorney’s Office, and the Sheriff’s Office alleging malicious prosecution,
misconduct, and failure to provide oversight. “Among other allegations, plaintiff claimed that
the State objected to requests for amendments to bail conditions, made false statements in court,
overcharged him in certain criminal cases, and refused to charge for wrongs committed against
him.” Rivard v. Windham Cnty. State’s Att’y Off., No. 23-AP-380, 2024 WL 1012374, at *1
(Vt. Mar. 8, 2024) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files
/documents/eo23-380.pdf. The allegations stemmed from a criminal prosecution of plaintiff for
domestic assault and plaintiff alleged that the malicious prosecution caused mental anguish and
defamation of plaintiff. The civil division dismissed the case, concluding that the claims were
barred by prosecutorial immunity and that plaintiff had failed to state a claim. This Court
affirmed the dismissal following plaintiff’s appeal. Id. at *2

In 2024, plaintiff filed this suit against the Windham County State’s Attorney’s Office
and Deputy State’s Attorney Dana Nevins, alleging that defendants made false statements about
his criminal prosecution that were published by a newspaper. Defendants moved to dismiss on
several grounds, including that claim preclusion applied. Defendants argued that plaintiff’s
complaint arose from the same events as the prior lawsuit and that plaintiff was essentially
seeking to relitigate causes of action substantially identical to those dismissed in the 2023 suit.
The civil division agreed and dismissed the complaint, concluding that this case involved the
same transaction as the 2023 case. The court denied plaintiff’s subsequent motion to reconsider.
Plaintiff appeals.

On appeal, plaintiff argues that the court abused it discretion in applying claim
preclusion. Plaintiff asserts that the claim of defamation in this case differs from the ones made
in the 2023 case, which were centered on malicious prosecution.

In reviewing a grant of dismissal, this Court views the facts pleaded in the complaint as
true. Faulkner v. Caledonia Cnty. Fair Ass’n, 2004 VT 123, ¶ 5, 178 Vt. 51. Whether claim
preclusion applies is a question of law that we review without deference to the trial court. Id.
Claim preclusion “bars subsequent litigation if the parties, subject matter, and cause(s) of action
in both matters are the same or substantially identical.” Id. ¶ 8. Claim preclusion applies to both
“claims that were or should have been litigated in the prior proceeding.” Id. To determine
whether two causes of action are sufficiently similar to apply the doctrine, we look to “ ‘whether
the facts are related in time, space, origin, or motivation, whether they form a convenient trial
unit, and whether their treatment as a unit conforms to the parties’ expectations or business
understanding or usage.’ ” Id. ¶ 13 (quoting Restatement (Second) of Judgments § 24(2)
(1982)).

On appeal, plaintiff asserts that the defamation claim raised in this suit is different from
the claims in the prior suit, which focused on malicious prosecution. Plaintiff’s argument
misunderstands the scope of claim preclusion. Claim preclusion applies to claims that should
have been raised as well as those actually pleaded in the prior proceeding. This is because claim
preclusion serves “(1) to conserve the resources of courts and litigants by protecting them against
piecemeal or repetitive litigation; (2) to prevent vexatious litigation; (3) to promote the finality of
judgments and encourage reliance on judicial decisions; and (4) to decrease the chances of
inconsistent adjudication.” Id. ¶ 9 (quotation omitted). Therefore, this Court focuses on whether
the claims in the subsequent lawsuit center on the same transaction as the prior suit.

Here, plaintiff’s claim of defamation arose from the same transaction as his prior
assertion of malicious prosecution because the facts were related in time, space, origin, and
motivation. Both were related to plaintiff’s conviction of domestic assault in August 2023 and
the behavior of the Windham County Sate’s Attorney Office—Deputy State’s Attorney Nevins
in particular—during that prosecution. In both, plaintiff claims that false statements made about

 Although plaintiff’s brief indicates that this case does not involve the same parties,
there was no final judgment on the merits, and the parties did not have a full and fair opportunity
to be heard, he provides no explanation or legal argument to support those assertions. Therefore,
we do not address them. See V.R.A.P. 28(a)(4) (requiring appellant to provide argument
demonstrating “appellant’s contentions and the reasons for them”).

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the case caused him harm. It would contravene the purposes of claim preclusion, including
avoiding piecemeal litigation, conserving court resources, and promoting finality, to allow
plaintiff to pursue this suit. Because the action was barred by claim preclusion, dismissal was
appropriate.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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