Stowe Aviation v. State

Zermont Superior Court
Filed 04/25/25
Orleans UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orleans Unit Case No. 22-CV-01922
247 Main Street
Newport VT 05855
802-334-3305
www.vermontjudiciary.org

Stowe Aviation, LLC et al v. State of Vermont Agency of Commerce and Community
Development

ENTRY REGARDING MOTION
Title: Stipulated Motion Filed for Entry of Final Judgment of Dismissal (Motion: 31)
Filer: David R. Groff; Michael B. Stevens
Filed Date: March 31, 2025

The motion is DENIED.

This case is in the discovery phase. On September 9, 2024, this court dismissed some, but
not all of the claims asserted by Plaintiff in a ruling on Defendant's Motion to Dismiss Plaintiff's
Second Amended Complaint. Plaintiffs sought an interlocutory appeal, but their motions were
denied by both this court and the Vermont Supreme Court. A pretrial scheduling order was
issued in preparation for discovery and trial. Now the parties have agreed to terms that would
allow the dismissal of some of Plaintiffs' claims to be appealed without proceeding to trial on
the undismissed claims, and they ask the court to issue a judgment that would facilitate this
approach.

The terms of their agreement include a dismissal of all claims in the Second Amended
Complaint, but without prejudice. V.R.C.P. 41(a)(2) allows the parties to file a stipulation of
dismissal, but it does not provide for a judgment from the court that would be the basis for an
appeal. The parties wish to have a judgment that would enable Plaintiff to appeal the decision
dismissing portions of their claims without first proceeding to try the undismissed portions. They
have agreed that if Plaintiff does not prevail in the Vermont Supreme Court on such an appeal,
the litigation would be over and Plaintiffs would take nothing on any claims; but if Plaintiffs
were to prevail, then all claims, as they were initially set forth in the Second Amended
Complaint, would proceed to trial. The court understands their desire to save potentially two
rounds of litigation expenses. The court asked the parties to brief whether such a process is
consistent with the Vermont Rules of Civil Procedure, as it apparently seeks to avoid the effect
of the court's denial of Plaintiff's motion for interlocutory appeal by providing for what would
operate as an interlocutory appeal.

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The parties ask this court to create a judgment that is not final, but is appealable, and is at
least partially in the nature of a second interlocutory appeal on the same issue. The Vermont
Supreme Court has not issued a decision on whether this procedure is authorized by the Rules.
The court’s research shows that the tactic sought by the parties has been litigated in other
jurisdictions, with mixed results. According to Wright & Miller, “The general rule is that a
dismissal without prejudice is neither final nor appealable.” 9 Wright & Miller, Federal Practice
& Procedure: Civil § 2367 (4th ed.). This is because “a voluntary dismissal without prejudice
under Rule 41(a) leaves the situation as if the action never had been filed. After the filing of a
dismissal, the action is no longer pending, and generally no further proceedings in the action are
proper.” Id.
This case is three years old and considerable judicial resources have already been devoted
to it, including three appeals to the Vermont Supreme Court. One was a denial of a request for
interlocutory appeal on the exact issue the Plaintiffs now wish to appeal. While the court
understands the parties’ desire to conserve resources, in analyzing whether the request is
consistent with the Vermont Rules of Civil Procedure, the following analysis from the Second
Circuit is persuasive:
A plaintiff’s attempt to appeal a prior adverse determination following the
dismissal of his remaining claims without prejudice necessarily implicates the
policies of the final judgment rule. Allowing such an appeal following a voluntary
dismissal with prejudice . . . furthers the goal of judicial economy by permitting a
plaintiff to forgo litigation on the dismissed claims while accepting the risk that if
the appeal is unsuccessful, the litigation will end. By contrast, because a dismissal
without prejudice does not preclude another action on the same claims, a plaintiff
who is permitted to appeal following a voluntary dismissal without prejudice will
effectively have secured an otherwise unavailable interlocutory appeal. As the
Ninth Circuit explained:
If a litigant could refuse to proceed whenever a trial judge ruled
against him, wait for the court to enter a dismissal [pursuant to
Rule 41], and then obtain review of the judge’s interlocutory
decision, the policy against piecemeal litigation and review would
be severely weakened. This procedural technique would in effect
provide a means to avoid the finality rule embodied in 28 U.S.C.
§ 1291. Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073,
1076–77 (9th Cir. 1994) (internal quotations omitted, alteration
added).

Chappelle v. Beacon Commc’ns Corp., 84 F.3d 652, 654–55 (2d Cir. 1996) (emphasis added);
“In general, Vermont follows the final-judgment rule, which provides that appellate review is
usually postponed until after final judgment because this best protects the interests of litigants
while conserving judicial resources.” State v. Haynes, 2019 VT 44, ¶ 12, 210 Vt. 417; accord In
re Pyramid Co. of Burlington, 141 Vt. 294, 300 (1982) (“Piecemeal appellate review causes

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22-CV-01922 Stowe Aviation, LLC et al v. State of Vermont Agency of Commerce and Community Development
unnecessary delay and expense, and wastes scarce judicial resources.”). “To be final and
appealable an order must end litigation on the merits or conclusively determine the rights of the
parties, leaving nothing for the court to do but execute the judgment.” In re Burlington Bagel
Bakery, Inc., 150 Vt. 20, 21 (1988) (internal quotation omitted).

Accordingly, the court declines to issue the judgment proposed by the parties. Therefore,
the motion is denied.
Electronically signed April 25, 2025 pursuant to V.R.E.F. 9 (d).

Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

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