City Feed v. Sticks and Stuff

Vermont Superior Court
Filed pele 25
Franklin Unit

VERMONT SUPERIOR COURT
Franklin Unit

17 Church Street

St. Albans VT 05478

802-524-7993

www.vermontjudiciary.org

CIVIL DIVISION
Case No. 24-CV-02428

City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuffv. WT LLC et al |

ENTRY REGARDING MOTION

Title: Motion for Summary Judgment on the Issue of Liability (Partial); Motion for
Extension of Time; Motion for Relief From Judgment; Motion for Discovery Sanctions; (Motion: 3;
4; 5; 7)

Filer: Matthew A. Zidovsky; William Foge; William Fogg; Matthew A. Zidovsky

Filed Date: May 30, 2025; July 03, 2025; July 03, 2025; July 24, 2025

This matter is before the Court on four separate motions. Plaintiff has filed a motion
for partial summary judgment on the issue of liability and a motion for discovery sanctions.
Defendants have filed a motion to reopen discovery and depose one of Plaintiffs
employees, and a motion to accept a late filing of its opposition.

For the reasons stated below, the Court grants the motion for partial summary
judgement, the motion for sanctions, in part, and the motion to late file an opposition. The
motion to reopen discovery and take a deposition is denied.

The Court first notes that it granted the motion to late file the opposition and
reviewed that filing in reaching its decision. It did so because the timing of the issuance of
the order setting a briefing schedule and the time for mailing make it appropriate to provide
a self-represented party some leniency in this area.

Request for Sanctions

Next, the Court takes up the discovery issue. The Court entered a discovery schedule
in this case on September 26, 2024. This schedule was jointly proposed by Plaintiff and
Defendants. The schedule called for all depositions to be completed by April 15, 2025, and
for all motions for summary judgment to be filed by May 30, 2025. No party asked to
modify the schedule.

Plaintiff issued discovery requests to Defendants in October 2024. Neither
Defendant responded. Plaintiff then filed a motion to compel their responses on April 29,
2025. Defendants never responded to that motion to compel, either. Based on the failure to
respond and the representations in the motion, the Court granted the motion to compel.

Entry Regarding Motion Page 1 of 5
24-CV-02428 City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuff v. WT LLC et al
Vermont Superior Court
Filed on/ 10/25
Franklin Unit

Even after the Court granted the motion to compel, Defendants never produced any
additional documents. As a result, Plaintiff moved for sanctions.

Plaintiff seeks two sanctions: an “order (1) prohibiting Defendants from producing
any documents responsive to previously served written discovery in opposition to Plaintiffs
Summaty Judgment Motion or at trial... , and (2) striking any affirmative defenses that rely
on responsive but previously unproduced documents.” Pl.’s Mot. for Disc. Sanctions at 2
(filed July 3, 2025). In considering a motion for sanctions, the Court looks to Vermont Rule
of Civil Procedure 37. Rule 37(b)(2) states: “If a party or an officer, director, or managing
agent of a party... fails to obey an order to provide or permit discovery, including an order
[compelling discovery] ... the court in which the action is pending may make such orders in
regard to the failure as are just” and then provides a list of possible orders. One of the listed
sanctions is prohibiting the introduction into evidence, at any stage of the case, the discovery

that the party failed to provide.

Defendants’ response to the motion for sanctions can be summarized as follows: (1)
Defendants did provide ten pages of documents and stated other documents were public
records, and (2) Defendants thought settlement negotiations defeated the Court-ordered
schedule and the order compelling discovery. Those arguments fail to persuade the Court.

First, the ten pages of documents that were attached to the complaint are not
discovery for purposes of this order. They were attachments to the answer and outside of
what is defined as discovery under the Court’s rules. These ten pages can be introduced by
either party as evidence. The fact that documents are available publicly does not excuse a
party from producing them. However, even if Defendants wanted to raise that as a defense
to producing documents, the time for doing so was within thirty days of the issuance of the
discovery tequest. That time has long passed.

This brings us to the second argument. Plaintiffs counsel repeatedly asked
Defendants for documents and then the Court ordered Defendants to produce them. It
defies logic that any party to a lawsuit would think that a court order requiring them to
ptoduce documents, which specifically warned that sanctions could be imposed, was not
something to take seriously and address directly with the Court. Instead of producing
documents or responding to Plaintiff's motion to compel, Defendants did nothing.

The Court grants the motion for sanctions, in part. The Court will not allow
Defendants to offer into evidence any document responsive to previously served written
discovery. The Court will not strike the affirmative defenses as a whole and will address
those separately as part of the summary judgment briefing.

Request to Depose Mr. Talbert

Defendants have asked the Court for additional time to depose Andy Talbert, an

employee of Plaintiff. In their request to take this deposition outside of the Court-approved
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24-CV-02428 City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuff v. WT LLC et al
Vermont Superior Court
Filed on/ 10/25
Franklin Unit

schedule, Defendants provide three reasons. First, they assert they did not know they
needed Mr. Talbert’s deposition until after the motion for partial summary judgment was
filed. Second, they argue that Mr. Talbert’s deposition is critical, and his answers will
support their arguments in the summary judgment motion. Finally, they argue that it violates
due process not to allow the deposition.

The Court rejects all three of these arguments. Turning first to due process, the
parties in this case had a schedule. The schedule was a Court order. The schedule gave
seven months to the parties to conduct discovery, and during that time, Defendants did not
ask to take Mr. Talbert’s deposition. The Court does not know why they made this choice.
Defendants did not participate in discovery at all during this time. This was not the first
time Defendants were involved in litigation, so while they are self-represented, they had at
least some familiarity with the general process and the concept of a court order.

Defendants did not ask for more time to depose Mr. Talbert before the expiration of
the deposition deadline on April 15, 2025. Had they, Vermont Rule of Civil Procedure 6
provides they would only need to meet a good cause standard to justify the need for an
extension. This is a relatively low standard, though it still requires reasonable support. Since
Defendants have asked for the extension approximately three months after April 15, 2025,
they must meet the excusable neglect standard, which is much higher. See In re Town of
Killington, 2003 VT 87A, 176 Vt. 60. Defendants have not provided any reason for failing to
follow the court’s schedule or request a timely extension. It is not a violation of due process
for the Court to enforce its publicly available rules. See In Re IMuzzi, 159 Vt. 155 (1992)
(holding that Plaintiff's due process was not violated when the court applied a rule “as
written”).

Next, Defendants’ filings state both that Mr. Talbert’s deposition testimony is critical
and that they do not need it to defeat summary judgment. However, for purposes of
considering this motion, the Court will assume it is important. That is not a reasonable basis
for extending the deadline three months after it expired.

Nor does the Court find it reasonable that Defendants just realized that Mr. Talbert’s
testimony was important. Perhaps they just realized they needed the deposition to make a
summary judgment argument, but Defendants have known all along who from Plaintiffs
company was involved with the purported amended credit application. This defense was
raised in their answer to the complaint.

The Court notes that Defendants allege that Plaintiff engaged in some type of
improper behavior during the discovery process. There was no evidence of that in any of the
filings submitted by Defendants. There is no information that Plaintiff withheld any
information that had been requested from it. According to Plaintiffs attorney’s
unchallenged declaration, Plaintiff provided discovery information to Defendants based on
informal requests and as part of settlement discussions.

Entry Regarding Motion Page 3 of 5
24-CV-02428 City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuff v. WT LLC et al
Vermont Superior Court
Filed 09/10/25
Franklin Unit

Ruling on Summary Judgment

This is a simple case to enforce a previously entered into settlement agreement and a
business credit contract. The case has been pending for approximately a year. Given the
parties’ prior lawsuit, there is no reason that this case needs longer to develop a factual
record. As noted above, Defendants have not explained what information they need in
discovery now that they could not reasonably have pursued within the schedule. Under Civil
Rules 56(d) and 6, the Court does not see any basis to defer a decision on summary
judgment.

Under Rule 56, the Court shall grant summary judgment for the moving party if that
party shows there is no dispute as to any material fact and that party is entitled to judgment
as a matter of law. When the nonmoving party cannot present facts that are essential to
justify its opposition to the motion, the Court has the discretion to grant summary judgment
for the moving party. V.R.C.P 56(d).

Plaintiff seeks summary judgment against all defendants: WT LLC, Michele Rennie,
Wilham Fogg, WT L.L.C., Bam, LLC, and WT Builders, LLC. The opposition to the motion
for summary judgment only raises as a defense a modification of the original agreement
related to Ms. Rennie. Because no defenses or contested facts were raised as to the other
five Defendants, the Court grants summary judgment on liability against WT LLC, Wiliam
Pogy, WT L.L.C., Bam, LLC, and WT Builders, LLC.

The only real area of dispute between the parties is whether there was an amendment
of the original contract such that Ms. Rennie is no longer responsible under the parties’
otiginal contract. There is no dispute that Ms. Rennie signed a personal guarantee on the
otiginal credit agreement on July 9, 2019. Defendants have come forward only with an e-
mail chain from December 2020, reflecting that an employee of Plaintiff asked Mr. Fogg to
come to the office to sign an updated credit application. Nothing in that e-mail chain states
the Ms. Rennie will be released as a guarantor.

Defendants argue that this is enough to create a disputed issue of fact. That is
incorrect, because the best evidence of whether an amended credit agreement was completed
is the agreement itself. V.R.E. 1002-04. Plaintiff has sworn in an affidavit that it does not
exist. Defendants have not produced it in discovery or attached it to their filing. In other
words, other than Defendant Foge’s statements that he was asked to sign a new credit
agreement, there is no admissible evidence to support the content of that new agreement.

The Court notes that even if Defendants have a copy of this purported revision, the
Court’s sanction order would prevent them from presenting it as evidence at this time
because it was not previously produced.

Because there is no genuinely disputed fact as it relates to which credit application
and personal guarantee controls, the Court grants summary judgment on liability to Plaintiff

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24-CV-02428 City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuff v. WT LLC et al
Vermont Superior Court
Filed 09/10/25
Franklin Unit

against Ms. Rennie, as well. She signed the original credit application and personal
guarantee. She has not filed any opposition to the motion for summary judgment. And, no
other defense has been raised on her behalf. Plaintiff is entitled to judgment as a matter of
law, based on the undisputed facts, as it relates to liability.

ORDER

The Court grants summary judgment to Plaintiff against all Defendants on the issue
of liability. The Court will set this for a one-hour hearing on damages. Any party may file a
request asking for more time if they believe it is necessary.

Electronically signed on September 9, 2025, pursuant to V.R.E.F. 9(d).

Mc pew

Navah C. Spero
Superior Court Judge

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24-CV-02428 City Feed and Lumber Co. Inc. D/B/A/ Sticks & Stuff v. WT LLC et al