Cunha-Salomon v. Williamson Grp

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 24-CV-00631
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org

Adriana Cunha-Salomon and Gabriel Evensen
Plaintiffs

v.

Williamson Group, LLC d/b/a Williamson Group Sotheby’s International Realty
Defendant

Decision on Defendant’s Motion to Dismiss

On February 15, 2021, plaintiffs Adriana Cunha-Salomon and Gabriel Evensen bought real
property in Barnard. Several months later, they discovered that a neighbor held an easement across the
property. Plaintiffs filed and resolved a claim with their title insurer for devaluation of the property. On
February 14, 2024, plaintiffs filed this civil action against the seller’s listing agent for invasion of
privacy and negligent infliction of emotional distress. At issue is whether plaintiffs commenced the
action within the time provided by Vermont Civil Procedure Rule 3.
It appears that, after filing the complaint, plaintiffs sent “a complaint, summons and other
documents” by mail to defendant, and requested that defendant “appear before the court within 30
days.” It is not clear whether a waiver of service was amongst the documents sent by plaintiffs.
Attorney Cooley responded to the mailing and advised plaintiffs that she was representing defendant,
and directed plaintiffs’ attention to the pre-suit mediation requirement of the purchase-and-sale
agreement. Cf. Kinahan v. Gulli, No. 21-CV-03725, 2023 WL 7548708, at *5–6 (Vt. Super. Ct. July
26, 2023) (Tomasi, J.) (explaining and enforcing the pre-suit mediation requirement in a dispute
arising out of a real-estate purchase-and-sale agreement). Attorney Cooley requested that plaintiffs
withdraw their complaint and submit the matter to mediation instead.
A mediation occurred in May 2024, but plaintiffs never withdrew their complaint. Instead,
plaintiffs received a letter from the court in June 2024 advising them that the case would be dismissed
for lack of progress if plaintiffs did not file proof of service within 30 days. Plaintiffs then wrote to
Attorney Cooley and requested that she file an appearance with the court. Attorney Cooley declined to
do so. Plaintiffs then filed a “motion for instructions” with the court, asking the court to interpret
Attorney Cooley’s prior letter about the pre-suit mediation requirement as proof of service, and
furthermore asking the court to order Attorney Cooley to enter a notice of appearance and file an
answer. Plaintiffs thereafter served the complaint upon defendant on July 12, 2024, whereupon
defendant filed the present motion to dismiss based upon untimely service.

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24-CV-00631 Adriana Cunha-Salomon, et al v. Williamson Group, LLC
In general, the rule is that a summons and a complaint must be served upon the defendant
within 60 days after the filing of the complaint. Vt. R. Civ. P. 3(a). It is the plaintiff’s responsibility to
complete service within the required time. If service is not timely made, “the action may be dismissed
on motion.” Id. A defendant who is not timely served may elect to waive the motion, Dartmouth
College v. Kozaczek, 2010 VT 113, ¶ 2, 189 Vt. 593 (mem.), but if the motion is made, no showing of
prejudice is required. Fercenia v. Guiduli, 2003 VT 50, ¶ 12, 175 Vt. 541 (mem.); Morrisseau v. Estate
of Fayette, 155 Vt. 371, 372 (1990). In this context, late is late, and there is not a grace period for
service that is made somewhat after the time required. Fercenia, 2003 VT 50, ¶ 13; Powers v.
Chouinard, 138 Vt. 3, 4 (1979). Here, plaintiffs served the summons and complaint upon defendant
149 days after the complaint was filed. This was not timely under the rule, and defendant is entitled to
dismissal for that reason. Fercenia, 2003 VT 50, ¶ 13; Morrisseau, 155 Vt. at 372; Weisburgh v.
McClure Newspapers, Inc., 136 Vt. 594, 595 (1979).
Plaintiffs argue that an exception should be made to account for the various communications
they had with Attorney Cooley. One possible exception might be the doctrine of equitable estoppel,
which applies in cases where a defendant induces a plaintiff to delay service and then seeks dismissal
based upon that delay. See, e.g., Beebe v. Eisemann, 2012 VT 40, ¶¶ 13–16, 192 Vt. 613 (mem.)
(describing elements and application of the exception). It does not appear that this is such a case.
Plaintiffs wrote to Attorney Cooley and requested that she waive service. Attorney Cooley was not
required to agree to that request, 4A Wright & Miller, Federal Practice and Procedure: Civil 4th
§ 1092.1, and she did not do so. Instead, she requested that plaintiffs withdraw the complaint and
participate in pre-suit mediation, as required by the purchase-and-sale agreement. In other words,
defendant responded to the notice of suit by insisting that plaintiffs honor a contractual agreement
meant to facilitate dispute resolution before complaints are filed and litigation costs incurred. No unfair
inducement thereby transpired.
Another possible exception might be to grant plaintiffs an extension of time within which to
make service. See, e.g., Vt. R. Civ. P. 6(b); Clark v. Baker, 2016 VT 42, ¶ 15, 201 Vt. 610; Bessette v.
Dep’t of Corrections, 2007 VT 42, ¶ 10, 182 Vt. 1. At the earliest, a motion to this effect (if the motion
for instructions is construed as such a motion) was not filed until 133 days after the complaint was
filed, and so plaintiffs’ burden would be to demonstrate good cause for the extension of time and
“excusable neglect” as to why the extension was not requested within the original 60-day time period.
Vt. R. Civ. P. 6(b)(1)(B); Gray v. Jones Lang LaSalle America, Inc., No. 23-CV-02999, 2023 WL
7309305, at *2 (Vt. Super. Ct. Oct. 4, 2023) (Corbett, J.). Here, there is neither good cause nor
excusable neglect, because the explanation for delay appears to be related to plaintiffs’ failure to
follow the contractual pre-suit mediation requirement before filing the civil action. It was “totally
within the control” of plaintiffs to follow contractual requirements regarding pre-suit mediation before
filing suit, and thereafter to follow the applicable civil procedural rules. In re Lund, 2004 VT 55, ¶ 6,
177 Vt. 465 (mem.); In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60. For these reasons, an
extension of time is not warranted under the circumstances of this case.
Plaintiffs also argue that dismissal would be unfair because defendant had notice of the lawsuit
as of March 2024. In this context, however, notice and service are not equivalent, and first-class mail
sent to a party’s attorney is not service. Fercenia, 2003 VT 50, ¶ 12. The rules require that personal
service be made, and that proof of service be filed within a particular period of time in order for the
commencement of the case to be effective. Compliance with the rules is expected especially when

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24-CV-00631 Adriana Cunha-Salomon, et al v. Williamson Group, LLC
"expiration of the statute of limitations" may be an issue. /d., § 13. The rules were not followed in this
case.

Plaintiffs finally argue that dismissal is not appropriate because the return of service was filed
within the time provided by the court's lack-of-progress notice. Here, two different rules and situations
are involved, and the rules are independent. The first rule is a rule of commencement, and it is
described above: a plaintiff must serve a complaint upon a defendant within 60 days after the case is
filed or the case may be dismissed upon motion of the defendant. Especially in cases involving statutes
of limitation, this rule helps to define whether the filing of the complaint was effective in tolling the
limitations period as of that filing date. Fercenia, 2003 VT 50, § 9. The second rule is a rule of
progress, and it allows a court to dismiss a case upon its own initiative if service has not been made
within 90 days of filing the action. Vt. R. Civ. P. 41(b)(1)Gii); Gamache v. State, No. 22-AP-017, 2022
WL 1515054, at *2 (Vt. May 2022) (unpub. mem.). The purpose of the latter rule is to enable the court
to manage its docket and to dispense with cases in which it cannot proceed due to lack of service upon
the defendant. The second rule does not apply in cases where, as here, the defendant has appeared and
filed a motion to dismiss. A plaintiff's compliance with the court's lack-of-progress notice does not
prevent a court from granting a defendant's motion to dismiss.
For these reasons, the above-captioned complaint is dismissed. It is not clear whether the self-
represented litigants' complaint seeks damages only for emotional distress or whether the allegations
include some component of economic harm. As such, the court declines to evaluate, under the present
procedural posture, whether the dismissal bears upon the applicable statute of limitations. Fitzgerald v.
Congleton, 155 Vt. 283, 291-92 (1990).

ORDERS
(1) Plaintiff's Motion for Instructions (Motion #1) is denied;

(2) Defendant's Motion to Dismiss (Motion #2) is granted in part and denied in part;

(3) Defendant's Second Motion to Dismiss (Motion #3) is denied as moot; and

(4) The above-captioned complaint is dismissed without prejudice.

Electronically signed on Tuesday, September 24, 2024 pursuant to V.R.E.F. 9(d).

H. Dickson Corbett
Superior Court Judge

Vermont Superior Court
Filed 09/26/24
Windsor Unit

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24-CV-00631 Adriana Cunha-Salomon, et al v. Williamson Group, LLC