Rogers v. Rogers

7ermont Superior Court
Filed 12/11/25
Windsor Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 25-CV-02185
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org
Brian Rogers et al v. Steven Rogers

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 4)
Filer: Everett M. Secor, Esq.
Filed Date: September 18, 2025

Decision on Defendant's Motion to Dismiss

This is an unusual residential eviction action. Plaintiffs/Landowners Barbara Rogers and
Brian Rogers are seeking to evict Defendant Steven Rogers from a mobile home on the property
that also includes the home in which Barbara and Brian live.! Brian and Steven are adult
brothers; Barbara is their mother. Plaintiffs served Steven with a notice to vacate for no cause.
Steven has refused to vacate, prompting this case. With his answer, Steven has asserted
counterclaims styled as illegal eviction, financial exploitation of a vulnerable adult, retaliation,
consumer fraud, and for betterments.

In earlier proceedings, the court (Corbett, J.) denied Plaintiffs' motion for payment of
rent into court as well as Steven's motion for a temporary restraining order and a preliminary
injunction.

Thereafter, Steven filed the pending motion to dismiss Plaintiffs' claim for eviction,
arguing that Plaintiffs lack a legal basis for the termination of his tenancy because (1) the notice
of termination cites a statute that does not exist ("Title 9 V.S.A. § (e))" and (2) the complaint
alleges that the rental agreement is oral only but cites 9 V.S.A. § 4467(e) in support of a no-
cause eviction, while § 4467(e) applies in the circumstance of written leases only. Steven
suggests that these issues improperly force the tenant to speculate as to what the notice really
might intend to convey. Steven also argues (3) that the notice unlawfully sought to terminate the
tenancy in the middle of a rental period, which is year-to-year (as he sees it). Finally, Steven
argues (4) that the notice is nonsensical insofar as it seeks to terminate the tenancy while at the
same time increasing the amount of rent for the tenancy following the termination date.

Steven's motion is less than clear as to the procedural standard under which he seeks
dismissal, particularly because he seeks to introduce new facts to the record and makes no effort
at compliance with summary judgment procedure. In opposition, Plaintiffs expressly

'
Because the parties all share the same last name, the court refers to them by their first names.
characterize Steven’s motion as seeking dismissal for failure to state a claim, V.R.C.P. 12(b)(6),
but then also seek to introduce new facts to the record that the Rule 12(b)(6) procedural standard
would not permit.

In the circumstances, the only sensible construction of Steven’s motion is to treat it as
seeking Rule 12(b)(6) dismissal for failure to state a claim. There is no other dismissal standard
that might cogently apply.2 The court disregards all evidence the parties have sought to
introduce beyond the allegations of the complaint and the two exhibits filed with it. The court
declines to convert the motion to dismiss to one seeking summary judgment as any such
conversion would be wholly improvident on this record. See V.R.C.P. 12(b) (“If, on a motion
asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and disposed of as provided
in Rule 56, and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.”).

A motion to dismiss for failure to state a claim faces a high bar. The Vermont Supreme
Court has described the familiar standard for Rule 12(b)(6) motions to dismiss for failure to state
a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is especially
true “when the asserted theory of liability is novel or extreme,” as such cases
“should be explored in the light of facts as developed by the evidence, and,
generally, not dismissed before trial because of the mere novelty of the
allegations.” In reviewing a motion to dismiss, we consider whether, taking all of
the nonmoving party’s factual allegations as true, “‘it appears beyond doubt’ that
there exist no facts or circumstances that would entitle the plaintiff to relief.” We
treat all reasonable inferences from the complaint as true, and we assume that the
movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309 (citations omitted); see also
5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.) (“Ultimately, the burden
is on the moving party to prove that no legally cognizable claim for relief exists.”).

The record for Rule 12(b)(6) purposes generally is limited to the four corners of the
complaint and any attachments to it. See Nash v. Coxon, 152 Vt. 313, 314–15 (1989) (“[I]f
matters outside the pleadings are presented and not excluded by the court, the motion to dismiss
must be treated as one for summary judgment.” (internal quotation and citation omitted)). There

2 To the extent that one might argue that the court lacks subject matter jurisdiction, V.R.C.P. 12(b)(1), because the

notice to terminate is defective, the court disagrees. A defective notice may mean that the cause of action fails on
the merits; it does not mean that the court lacks the power to make that determination. See Vermont Hum. Rts.
Comm’n v. Town of St. Johnsbury, 2024 VT 71, ¶ 13 (“Subject-matter jurisdiction ‘refers to a tribunal’s power to
hear a case,’ not to ‘whether the allegations the plaintiff makes entitle him to relief.’” (citation omitted)).
is a limited exception: documents sufficiently referred to and relied upon in the complaint may
properly be considered in a motion to dismiss even if not attached to the complaint. See Kaplan
v. Morgan Stanley & Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605; Parada v. Banco Indus. De Venez.,
C.A., 753 F.3d 62, 67–68 (2d Cir. 2014) (decision on whether to exclude extra-record documents
or transition motion to summary judgment is discretionary).

The Vermont Supreme Court has recognized the “principle that the tenant cannot be put
in the position of having to speculate on the meaning and legal effect” of a notice to terminate.
Andrus v. Dunbar, 2005 VT 48, ¶ 13, 178 Vt. 554. That principle manifestly serves the interest
in fairness; it is not an invitation to gamesmanship. The Court has emphasized that “technical
accuracy in the wording of a notice [to terminate a tenancy] is not required but the notice must be
so certain that it cannot be reasonably misunderstood.” Hawaiian Elec. Co. v. DeSantos, 621
P.2d 971, 975 (Haw. 1980) (emphasis added), cited in Andrus, 2005 VT 48, ¶ 13; see also J & K
Tile Co. v. Wright & Morrissey, Inc., 2019 VT 78, ¶ 22, 211 Vt. 179 (more generally rejecting
the old “sporting theory of justice”); First Nat. Bank of Bos. v. Silberdick, 146 Vt. 209, 211
(1985) (same); Castle v. Sherburne Corp., 141 Vt. 157, 167 (1982) (same).

Particularly when viewed through the Rule 12(b)(6) standard, the notice to terminate is in
no way confusing or equivocal in some manner such that it would leave a reasonable tenant in a
state of doubt as to the landlord’s intentions. The notice plainly provides: “You are hereby
notified that your tenancy will terminate for no cause, and you must vacate the rental premises
on or before April 30, 2025.” It goes on to say: “In the event you fail to vacate the premises by
April 30, 2025, the monthly rent due for the premises will increase to $1,250.00 per calendar
month, or any part thereof. In addition to the increase in rent, our office is directed to commence
proceedings for ejectment/eviction in the Windsor Superior Court and we will be requesting that
rent be paid into Court. We will be seeking interest and costs, in addition to the relief set forth
above, in the event we are required to commence formal proceedings.”

There are not two ways to reasonably interpret the notice. It provides a date certain for
the tenant to vacate for no-cause. It also announces that if the tenant fails to comply with the
termination date, then the rental amount will increase to a certain monthly rate while the landlord
files suit to evict the tenant.

To the extent that Steven has argued that the notice or any other conduct by Plaintiffs is
so confusing or equivocal that he is unable to discern their intentions, the motion is denied. To
the extent that he argues that the notice is invalid because it seeks to terminate the tenancy for no
cause in the middle of his year-to-year rental period, the motion is denied because the fact of a
year-to-year rental period is an extra-record fact that is not cognizable under Rule 12(b)(6).

In that regard, Steven has made the following representation in his motion: “In denying
Plaintiffs’ Motion for Rent Escrow on July 30th, 2025, the court found that under Defendant’s
year-to-year rental agreement beginning in November, Plaintiffs lacked a basis to demand rental
payments on a monthly basis or to institute a rent increase in the middle of a rental period.”
Motion to Dismiss at 2 (filed Sept. 18, 2025). The court has listened to the recording of the July
30 hearing, at the end of which the court (Corbett, J.) made findings and conclusions on the
record. Judge Corbett did not find that there was a year-to-year rental agreement or that there
was any lack of an ability to “institute a rent increase in the middle of a rental period.” See
generally V.R.C.P. 11(b). As to the motion to pay rent into court, he found that there was no rent
currently due, and there was no “meeting of the minds” between Plaintiffs and Steven as to the
purported rent increase in the termination notice. That is it.

To be clear, he did not even expressly determine that there has ever been a rental
agreement between the parties subject to the Residential Rental Agreements Act, 9 V.S.A. §§
4451–4475. The Act expressly does not apply to the “occupancy of a dwelling unit without right
or permission by a person who is not a tenant.” 9 V.S.A. § 4452(a)(9) (emphasis added). A
tenant is “a person entitled under a rental agreement to occupy a residential dwelling unit to the
exclusion of others.” 9 V.S.A. § 4451(10). A rental agreement “means all agreements, written
or oral, embodying terms and conditions concerning the use and occupancy of a dwelling unit
and premises,” id. § 4451(8), that contemplates the payment of rent, which includes “all
consideration to be made to or for the benefit of the landlord under the rental agreement, not
including security deposits,” id. § 4451(7). The Act thus applies when there is a contract
between a landlord and a tenant in which the tenant pays rent in exchange for the right to
exclusive occupancy of a dwelling unit and premises.

The court makes no determination here, but for the benefit of the parties going forward, it
points out that whether there has even been such an agreement between the parties in this case is
by no means clear and certainly was not determined at the July 30 hearing. There, the testimony
was to the effect that, with Plaintiffs’ permission, Steven moved onto the premises after he
divorced and his son needed housing or Steven needed a Royalton residence for his son’s school
purposes. As far as the testimony at the hearing went, the arrangement was completely
gratuitous among family members in its origins. At some point, Steven began contributing more
or less to the expense of property taxes. That is as far as the evidence at the hearing went. Other
than that and the presumptions of counsel, there was no clear evidence presented of a contract
contemplating the payment of rent in exchange for the right to exclusive occupancy.

The court points this out because this is not the sort of eviction case in which the parties
obviously have a rental agreement of some sort, even if its terms are disputed. And whether
there is a rental agreement subject to the Act is an important predicate for how the parties’
competing claims are framed. As this litigation progresses, cogently resolving it will require
some clarification of this matter.

Order

For the foregoing reasons, Steven’s motion to dismiss (#4) is denied.
The Court will schedule this case for a final in person hearing and divide the time evenly
between the parties.

Dated December 11, 2025.

Electronically signed pursuant to Y REF 9{d).

Kerry A. McDonald-Cady, Superior Court Judge
Vermont Superior Court
Filed 12/11/25
Windsor Unit