Victor Calderon v. Brown's Certified Welding

VERMONT SUPREME COURT Case No. 24-AP-136
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

MARCH TERM, 2025

Victor Calderon* v. Brown’s Certified Welding et al. } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Civil Division
} CASE NO. 21-CV-03556
Trial Judge: Helen M. Toor

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

Plaintiff Victor Calderon appeals from a civil division order granting summary judgment
to defendants Brown’s Certified Welding, Inc., and Craig W. Brown d/b/a Brown’s Rental
Service. We affirm.

In November 2021, through counsel, plaintiff filed negligence, product-liability, and
breach-of-warranty claims against defendants. His complaint included the following factual
allegations. In October 2018, plaintiff leased a manlift from defendants for use in a painting
project. Defendants failed to appropriately inspect, maintain, and repair the manlift. The
following month, plaintiff was standing on and using the manlift when it suddenly dropped,
causing his body to strike portions of the platform’s metal frame and injuring him.

After defendants filed an answer, the parties engaged in discovery. They agreed to
several extensions of the discovery schedule which were granted by the court.

On September 15, 2023, plaintiff’s attorney filed a motion for leave to withdraw pursuant
to Vermont Rule of Civil Procedure 79.1(f). The motion was filed with a cover letter indicating
that plaintiff’s mailing address was 93 Lexington Road in Colchester, Vermont. The court
scheduled a hearing on the motion for November 13, 2023.

On October 11, defendants moved for a further extension of the discovery schedule,
indicating that plaintiff’s counsel assented to this request. See V.R.C.P. 79.1(f) (providing that
attorney who has entered appearance “shall remain as counsel until the attorney has been granted
leave to withdraw by the court”). The proposed amended schedule was signed by counsel for
plaintiff and defendants and provided that the deadline for plaintiff to disclose expert witnesses
had passed on October 1, 2023. The amended schedule was approved by the court on October
18, 2023.
At the November hearing, plaintiff stated that he did not want his attorney to withdraw,
while the attorney indicated that he and his client had differing views of the case such that he
was not clear how he could proceed. The court deferred its ruling on the motion to withdraw,
affording plaintiff an additional thirty days “to try to work things out” with his attorney. At the
end of this thirty-day period, plaintiff’s attorney filed a letter indicating that these efforts had
been unsuccessful.

The court granted plaintiff’s counsel’s motion for leave to withdraw on December 18,
2023. On the same date, it issued a notice to plaintiff indicating that within thirty days of receipt
of the notice, plaintiff was to either have a new attorney enter an appearance on his behalf or
complete and return the enclosed notice to appear self-represented. See V.R.C.P. 79.1(g)
(“When an attorney has been granted leave to withdraw . . . the clerk shall notify the party
forthwith by mail, of such withdrawal, and inform said party that unless the party enters a notice
of appearance to be self-represented or appears by attorney within thirty days after receipt of
such notification, the action will be dismissed or defaulted, as the case may be.”).

On January 2, 2024, defendants filed a motion for summary judgment. They noted that
each of plaintiff’s claims arose from the general allegation that the manlift’s sudden drop was
caused by a malfunction, and that defendants should have been aware that it was not in a safe
condition for plaintiff’s use. Defendants argued that it was undisputed that the manlift was a
complex piece of equipment involving multiple systems and, as a result, plaintiff would need to
present expert testimony to establish that any alleged malfunction was the cause of the accident
or whether defendants breached the standard of care. See, e.g., Coll v. Johnson, 161 Vt. 163, 165
(1993) (explaining that expert testimony may not be necessary where “the alleged violation of
the standard of care is so apparent that it may be understood by a lay trier of fact without the aid
of an expert” (quotation omitted)); Egbert v. Book Press, 144 Vt. 367, 369 (1984) (“When the
facts to be proved are such that any layman of average intelligence would know from his own
knowledge and experience that the accident was the cause of the injury, no expert testimony is
needed to establish the causal connection; however, where the causal connection is obscure,
expert testimony is required.”). However, each of the experts plaintiff disclosed prior to the
October 1, 2023 deadline were medical doctors expected to testify regarding his injuries and
medical condition after the incident. Because plaintiff had not timely disclosed an expert who
could opine regarding the standard of care applicable to the lessor of such equipment or that the
manlift dropped due to a malfunction as opposed to some other cause—such as user error—
defendants argued that plaintiff could not prevail on any of his claims and they were entitled to
judgment as a matter of law.

Defendants filed a certificate of service indicating that they served plaintiff with the
motion by mail sent to 19 Lexington Road in Colchester.

On January 3, the court issued a notice to plaintiff warning: “An opposing party in this
case has filed a ‘motion for summary judgment’ against you. That means they are asking the
judge to decide the case WITHOUT HAVING A TRIAL, based just on the papers they have
filed.” The notice explained that plaintiff had the right to file a written response, described the
necessary supporting materials, and directed him to Vermont Rule of Civil Procedure 56 for
more information.

On January 19, 2024, plaintiff filed a notice of self-representation. He listed his mailing
address as 93 Lexington Road in Colchester and did not consent to service by email.

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The court scheduled oral argument on the summary-judgment motion. Its order
explained that “[t]his will be plaintiff’s opportunity to explain his response to the motion.”
Plaintiff filed successive motions requesting to continue the anticipated trial dates to afford him
more time to find a new attorney. Defendants opposed these motions. The court issued an order
indicating that plaintiff’s motions to continue would be discussed at the April hearing.

Prior to the hearing, plaintiff filed a motion requesting to participate by video. Therein,
he noted that “the purpose of the April 9th hearing is to provide the plaintiff with an opportunity
to address the outstanding Motion for Summary Judgment.”

The court granted plaintiff’s request to participate remotely. Both parties appeared at the
April 9 hearing. At the outset of the proceeding, the court told plaintiff:

The reason that I scheduled this was because I wanted to know if
you understood what was happening here, and the nature of the
motion that was filed and the fact that that will resolve the case
against you, I didn’t see that you had given us the required
response. But when someone doesn’t have a lawyer, I like to make
sure they understand what’s going on. So tell me your view of this
at this point.

Plaintiff then began discussing his efforts to retain new counsel. The court asked, “[d]id you see
the papers that [defense counsel] filed, the motion for summary judgment?” Plaintiff responded,
“Yes, ma’am.” The court inquired whether there was anything plaintiff wanted to say in
response to the motion. He replied, “[t]here is clear proof that my injuries that have caused me
to be considered disabled result from the accident. That the defendant is unable to provide
maintenance and records for the lift, and inspection records from the company.” He then
immediately returned to discussing his efforts to retain counsel and his request that the court
postpone the trial dates, explaining that he was presently unhoused and struggling with his
mental and physical health. The court indicated that it understood his request, and asked, “[i]s
there anything else that you think I need to know?” Plaintiff again indicated that he needed more
time and an attorney. The court explained to plaintiff that it would take the matter under
advisement and proceed in one of three ways: it would either grant plaintiff’s request for more
time; deny defendants’ motion for summary judgment and then discuss calendaring trial dates; or
grant summary judgment to defendants, which would conclude the case.

The court issued its order later the same day. It indicated that at the hearing, plaintiff
sought more time to retain a new attorney and respond to defendants’ motion in the future. The
court explained that it was sympathetic to the personal issues plaintiff was experiencing, but
“this case has been pending since 2021, and the time to respond to the motion has passed.”
Because plaintiff failed to file a response, the court deemed defendants’ statement of facts
admitted under the summary-judgment rule. It reasoned that expert testimony was necessary to
establish what caused plaintiff’s accident and who was responsible. Because plaintiff had
disclosed no liability expert and the time to do so had expired, the court concluded that he could
not prevail on any of his claims and granted summary judgment to defendants.

Plaintiff moved to reconsider, asserting—for the first time—that defendants failed to
serve their summary-judgment motion on him. He noted that defendants’ certificate of service
indicated that the motion was mailed to 19 Lexington Road in Colchester, while his notice of

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self-representation listed his address as 93 Lexington Road in Colchester. As a result, he argued,
the judgment was void for lack of due process.

The court declined to reconsider its decision, indicating that plaintiff had acknowledged
at the April 9 hearing that he did receive the summary-judgment motion. Moreover, it reasoned,
the decision rested on the lack of expert testimony on liability, and plaintiff at no time suggested
he had secured an expert to testify on this point. Because the time for expert disclosure had run,
the court explained, plaintiff could not in any event have filed a meritorious response to the
motion.

Plaintiff is represented by counsel on appeal. He again argues that he was not served
with defendant’s motion for summary judgment in contravention of his constitutional right to
procedural due process and the judgment is therefore void.* Alternatively, he contends that the
court erred in denying his request for a continuance and granting defendants’ summary-judgment
motion.

We turn first to plaintiff’s due-process argument. We have recognized that a judgment is
void “ ‘if the court that rendered it . . . acted in a manner inconsistent with due process of law.’ ”
In re C.L.S., 2020 VT 1, ¶ 17, 211 Vt. 344 (quoting 11 C. Wright & A. Miller, Federal Practice
and Procedure § 2862 (3d ed. 2019)). “ ‘[T]he fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.G., 2023
VT 51, ¶ 43 (quoting Brock v. Roadway Express, 481 U.S. 252, 261 (1987)). Thus, “ ‘[d]ue
process is flexible and calls for such procedural protections as the particular situation
demands.’ ” Bandler v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115, ¶ 13, 200 Vt. 333
(quoting Mathews v. Eldridge, 424 U.S. 319, 321 (1976)). In considering a party’s argument
that a judgment is void for deprivation of due process, we have therefore looked to the record to
determine whether the party had a meaningful opportunity to be heard under the circumstances
of the case. See, e.g., In re K.G., 2023 VT 51, ¶¶ 43-44; Hill v. Springfield Hosp., 2023 VT 23,
¶ 19, 218 Vt. 64; Kneebinding, Inc. v. Howell, 2020 VT 99, ¶ 24, 213 Vt. 598; In re C.L.S., 2020
VT 1, ¶ 25.

Here, the record reflects that plaintiff was provided with a meaningful opportunity to be
heard on defendants’ summary-judgment motion notwithstanding any failure of proper service.
Immediately after defendants filed their motion, the court issued a notice advising plaintiff of his

*
In his brief, plaintiff observed that defendants moved for summary judgment during the
thirty-day period the court afforded him to file a notice to appear self-represented or through new
counsel “[d]espite the court’s Order and Notice reflecting no action would be taken during this
time” and that, after he filed his notice of self-representation indicating he did not consent to
service by email, defendants nonetheless served their subsequent filings on him by email. AAB
7-8. Plaintiff did not argue in his brief, however, that either of these circumstances specifically
resulted in prejudice or violated his due-process rights. To the extent he sought to raise these
contentions at oral argument, we decline to consider them because neither was sufficiently raised
or adequately presented in his brief. See V.R.A.P. 28(a)(4)(A) (explaining that principal brief
must include argument containing “appellant’s contentions and the reasons for them”); State v.
Bergquist, 2019 VT 17, ¶ 64 n.13, 210 Vt. 102 (“We will not consider issues, even those of a
constitutional nature, that are insufficiently raised and inadequately briefed.”); State v. Sullivan,
2013 VT 71, ¶ 26 n.*, 194 Vt. 361 (“Although we retain the discretion to take up issues raised
[for the first time] at oral argument, we usually do not, and we decline to do so here.”)
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right to respond and the potential implications of any failure to do so. It also scheduled oral
argument on the motion and indicated that this was plaintiff’s opportunity to explain his response
to the motion. Plaintiff does not dispute that he received proper service of the court’s orders.
Indeed, just before the hearing, plaintiff filed a request to appear by video in which he expressly
acknowledged the purpose of the hearing as framed by the court. Most significantly, contrary to
plaintiff’s suggestion, the court’s inquiry at the outset of the hearing was unambiguous: it asked
if plaintiff had seen the summary judgment motion, and he responded that he had. It is thus
apparent that plaintiff had actual notice of defendants’ motion. The court repeatedly solicited
plaintiff’s position on the motion, explaining that it wanted to ensure he understood what was
happening given his self-represented status. However, plaintiff did not raise any objection
regarding service. The record does not disclose a deprivation of due process that might render
the summary-judgment order void. See In re C.L.S., 2020 VT 1, ¶ 25.

In the alternative, plaintiff contends that the court erred in denying his motion for a
continuance and granting defendants’ motion for summary judgment. His arguments on these
points are intermingled and brief. Essentially, he contends that the court erred in denying his
request for a continuance because he did not have notice of the summary-judgment motion, and
the court therefore should have exercised its discretion to defer any ruling until plaintiff had an
opportunity to demonstrate the existence of a factual dispute in the manner required by Rule
56(c)(2). We address each issue in turn.

Trial courts have “broad discretion to manage their dockets,” Pcolar v. Casella Waste
Sys., Inc., 2012 VT 58, ¶ 20, 192 Vt. 343, and the denial of a motion to continue will not be
reversed absent “clear abuse” of that discretion, Off. of Child Support ex rel. Stanzione v.
Stanzione, 2006 VT 98, ¶ 13, 180 Vt. 629 (mem.). Accordingly, plaintiff must show that in
denying his request for a continuance the court either “totally withheld [its] discretion or
exercised it on grounds clearly untenable.” Id.

Plaintiff has not satisfied that high bar here. Though the court recognized that plaintiff
was experiencing personal issues, it declined to grant a continuance because the deadline to
respond to the motion had passed and the case had been pending since 2021. It did not exceed
the scope of its discretion in denying plaintiff’s motion on those grounds. To the extent plaintiff
suggests the court erred in declining to grant a continuance because he did not have proper notice
of defendants’ summary-judgment motion, as discussed above, plaintiff did not assert any lack of
notice until after the court issued its judgment. Instead, he explicitly acknowledged to the court
that he had seen the motion for summary judgment. He therefore failed to preserve this
argument for our review on appeal. See State v. Ben-Mont Corp., 163 Vt. 53, 61 (1994) (“To
properly preserve an issue for appeal a party must present the issue with specificity and clarity in
a manner which gives the trial court a fair opportunity to rule on it.”).

We review a grant of summary judgment without deference, applying the same analysis
as the trial court. Tillson v. Lane, 2015 VT 121, ¶ 7, 200 Vt. 534. Thereunder, summary
judgment must be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a).
“Summary judgment is mandated . . . where, after an adequate time for discovery, a party fails to
make a showing sufficient to establish the existence of an element essential to his case and on
which he has the burden of proof at trial.” Poplaski v. Lamphere, 152 Vt. 251, 254-55 (1989)
(quotation omitted).

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Plaintiff does not challenge the legal conclusions drawn by the court in ruling on the
summary-judgment motion. Instead, he notes that under Rule 56(e), where a party “fails to
properly address another party’s assertion of fact as required by Rule 56(c)” the court has
discretion to afford the party “an opportunity to properly support or address the fact.” V.R.C.P.
56(e)(1). However, Rule 56(e) also gives the court an option to “consider the fact undisputed for
purposes of the motion” and “grant summary judgment if the motion and supporting materials—
including the facts considered undisputed—show that the movant is entitled to it.” V.R.C.P.
56(e)(2), (3). Plaintiff therefore has not shown that the court erred in doing so here. See
Bloomer v. Gibson, 2006 VT 104, ¶ 14, 180 Vt. 397 (explaining that trial court “does not abuse
its discretion where it enforces the rules of civil procedure equitably, even against a pro se
litigant”). To the extent he contends that the court should have chosen to proceed differently
given the alleged lack of notice, he likewise failed to preserve this issue for our review because
he did not raise it below. See Ben-Mont Corp., 163 Vt. at 61.

Plaintiff has not shown that the judgment was void for lack of due process or that the
court erred in denying his request for a continuance and entering summary judgment for
defendants.

Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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