Jane Doe v. Victoria Camacho

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2024 VT 72

No. 23-AP-325

Jane Doe Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

Victoria Camacho May Term, 2024

Helen M. Toor, J.

James A. Valente and Zachary Hozid of Costello, Valente & Gentry, P.C., Brattleboro, for
Plaintiff-Appellant.

Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. COHEN, J. Plaintiff Jane Doe, proceeding by pseudonym, appeals from a civil

division order dismissing her July 2023 complaint as time-barred. She does not dispute that her

claims against defendant Victoria Camacho were each subject to three-year statutes of limitations

that began to run in April 2020. However, plaintiff filed a substantively identical set of claims

against defendant in June 2022, see Jane Doe v. State of Vermont et al., No. 22-CV-02175

[hereinafter Doe I]. Plaintiff argues that, given the circumstances surrounding the dismissal of

those claims, the trial court erred in concluding that the instant complaint was not timely filed

under Vermont’s savings statute, 12 V.S.A. § 558, or, in the alternative, pursuant to the equitable-

tolling doctrine. We affirm.
I. Background

¶ 2. Before setting forth the relevant procedural background, we address an outstanding

issue relating to the scope of the record on appeal. As noted above, plaintiff’s arguments for

application of the savings statute and equitable-tolling doctrine each hinge on the events

culminating in the dismissal of her claims against defendant in Doe I. In this appeal, plaintiff

submitted a printed case containing filings and a hearing transcript from that earlier proceeding.

We ordered plaintiff to show cause as to why the printed case should not be struck under Vermont

Rule of Appellate Procedure 30(d)(3), which provides that “[o]nly materials that are part of the

record below may be included in the printed case.” The same trial judge presided over both cases,

and the parties agree that the court implicitly took judicial notice of the record in Doe I in ruling

on defendant’s motion to dismiss the case at bar. They therefore request that we consider the

materials in the printed case. As a result of this agreement, we do not strike the printed case and

consider the procedural history of Doe I in resolving the arguments on appeal.1

A. Doe I

¶ 3. On June 21, 2022, plaintiff filed a complaint against the State of Vermont and eight

current and former Department of Corrections officials and employees in their individual and

1
A court may take judicial notice of the docket entries in a separate, related case. Peachey
v. Peachey, 2021 VT 78, ¶ 3 n.1, 215 Vt. 570, 266 A.3d 1264; see V.R.E. 201(b) (providing that
judicial notice may be taken of a fact “not subject to reasonable dispute in that it is . . . capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned”). However, it is improper to take judicial notice of the content of prior testimony in
another proceeding—as the trial court effectively did here—unless it is “part[] of the same ‘case’
for purposes of the record.” In re Torres, 2004 VT 66, ¶ 8, 177 Vt. 507, 861 A.2d 1055 (mem.)
(holding that post-conviction-relief court did not err in taking judicial notice of plea-colloquy
transcript in underlying criminal case because “the transcript is part of the same proceeding” under
applicable statute); see Sutton v. Purzycki, 2022 VT 56, ¶ 29 n.1, 217 Vt. 326, 295 A.3d 377
(“Courts cannot generally take judicial notice of findings of fact from other proceedings for the
truth asserted therein.”); Jakab v. Jakab, 163 Vt. 575, 578-81, 664 A.2d 261, 262-64 (1995)
(concluding that trial court improperly took judicial notice in divorce action of testimony in earlier
child-protection proceeding but declining to reverse on this ground because error was harmless).
Because the parties do not argue that the trial court erred in taking judicial notice of the findings
and testimony in Doe I, we do not consider whether it was appropriate to do so in light of the
relationship between the two cases.
2
official capacities. Victoria Camacho was among the individual defendants named in the

complaint. Plaintiff alleged that while she was incarcerated at Chittenden Regional Correctional

Facility between August 14, 2014, and April 16, 2020, correctional officers employed by the

Department—including Camacho—subjected her to sexual harassment, sexual assault, and sexual

exploitation. Under the Vermont Rules of Civil Procedure, plaintiff was required to serve copies

of the summons and complaint on the defendants within sixty days—by August 22, 2022.

V.R.C.P. 3(a) (providing that where action commenced by filing complaint with the court,

“summons and complaint must be served upon the defendant within 60 days after the filing of the

complaint”); V.R.C.P. 6(a)(1)(C) (providing that where last day of time period “is a Saturday,

Sunday, or legal holiday, the period continues to run until the end of the next day that is not a

Saturday, Sunday, or legal holiday”).

¶ 4. On July 22, plaintiff filed a waiver of service of summons executed by the Chief

Assistant Attorney General on behalf of the State. Several days later, in a response to plaintiff’s

motion to proceed by pseudonym, the State indicated that the Attorney General’s Office was

representing several of the individual defendants named in the complaint but had “not yet made a

representation decision under 3 V.S.A. § 1102” as to three others—including Camacho. Section

1102 provides that where a civil action is brought against a State employee for alleged acts or

omissions that the Attorney General determines, after investigation, “occurred within the scope of

the employee’s official duties,” the Attorney General “shall defend the action on behalf of the

employee.” 3 V.S.A. § 1102(a), (b).

¶ 5. In August and September, the State again filed stipulated motions seeking an

extension of the time to file a responsive pleading. Both motions noted that the Attorney General’s

Office had yet to determine whether it would represent three of the individual defendants under

3
§ 1102. In October, the State filed an answer on behalf of itself and each of the individual

defendants, save for two—Camacho and John Grasso.

¶ 6. In a November 28 order, the court observed that proof of service on these two

defendants had not been filed “despite the time for service having passed” and indicated that they

would “be dismissed from the case unless proof of timely service is filed within 30 days.” Plaintiff

served Grasso but, on December 21, moved for an extension of time to serve Camacho. In support,

plaintiff indicated that she only became aware that the Attorney General would not be representing

Camacho and Grasso—and that they would therefore need to be served separately—when the State

filed its answer on October 12. She further represented that on November 22, she requested the

assistance of a local sheriff’s department in serving Camacho at her last known address in New

Hampshire, but its attempts to execute service had been unsuccessful. The court granted the

motion and required plaintiff to file proof of service on Camacho by January 21, 2023.

¶ 7. On January 18, 2023, plaintiff filed the affidavit of a private investigator averring

that he served Camacho on January 17 by leaving copies of the summons and complaint with her

mother at their mutual residence in New Hampshire. The court issued an order stating, “[it]

appears that all defendants have now been served” and indicating that Camacho’s time to file an

answer would expire on February 7. Camacho did not file an answer, and plaintiff moved for

default judgment against her on March 28.

¶ 8. On April 4, counsel for Camacho filed a limited notice of appearance, opposed the

request for default judgment, and moved to dismiss the claims against her because service was

untimely or, in the alternative, ineffective. She argued that the sixty-day service deadline had

already expired when plaintiff moved to extend it on December 21, and that plaintiff did not satisfy

the excusable-neglect standard applicable to requests to extend a lapsed deadline, although

defendant was not “at that time . . . in the case to articulate that argument to the court.” See

V.R.C.P. 6(b)(1)(B) (providing that “for good cause,” court may extend time for act after

4
expiration “if the party failed to act because of excusable neglect”). Defendant noted that even

assuming for the sake of argument that the sixty-day service deadline ran from the date on which

plaintiff learned that the State would not represent her, she still neither timely served defendant

nor timely moved to extend the deadline. Finally, defendant argued that dismissal was warranted

because, even if any service before January 21 would have been timely given the court’s order,

defendant still had not been served because she did not reside at her mother’s New Hampshire

address on the date of purported service. In support of this final contention, defendant offered the

declaration of her mother, who indicated that her daughter did not reside with her but she “d[id]

not recall” what she told the investigator on this point before he left the papers with her.

¶ 9. In June 2023, the court held a hearing on defendant’s motion to dismiss and issued

a written decision including the following factual findings. Plaintiff sought to have the Attorney

General’s Office accept service of her complaint on behalf of all the individual defendants because

each was a State employee at the time of the relevant allegations. The Attorney General’s Office

did not determine whether it would represent all defendants before the sixty-day service deadline

expired in August. Nonetheless, plaintiff did not move to extend the deadline to serve Camacho

until December, six months after her complaint was filed. That motion was granted, and plaintiff

filed her return of service showing that defendant was served by leaving the papers with her mother

at a New Hampshire address. The court credited the investigator’s testimony that when he arrived

at the home, defendant’s mother told him that defendant lived there with her. The investigator left

the papers with defendant’s mother in reliance on Vermont Rule of Civil Procedure 4, which

provides that service may be made on an individual by leaving copies of the summons and

complaint “at the individual’s dwelling house or usual place of abode with some person of suitable

age and discretion then residing therein.” V.R.C.P. 4(d)(1), (e). However, at the time, defendant

lived in Massachusetts. She had not resided at her mother’s New Hampshire address since late

2021.

5
¶ 10. Based on these findings, the court concluded that Camacho was never properly

served: her mother’s home was neither her dwelling house nor usual place of abode within the

meaning of Rule 4. As a result, the court denied plaintiff’s motion for default and dismissed her

claims against Camacho.2 Given this conclusion, the court expressly declined to reach plaintiff’s

arguments that service was timely.

B. Doe II

¶ 11. Plaintiff filed the instant action against Camacho (hereinafter “defendant”) alone

on July 24, 2023. In her complaint, plaintiff raised the same claims at issue in Doe I and

summarized the circumstances surrounding the dismissal of those claims against defendant in the

earlier action, including plaintiff’s attempts to locate and serve her. Defendant was timely served

and again moved to dismiss, contending, as relevant here, that all colorable claims were barred by

three-year statutes of limitations which began to run upon plaintiff’s April 16, 2020 release from

incarceration. See 12 V.S.A. § 551(a) (providing that where plaintiff is “imprisoned at the time

the cause of action accrues,” limitations period begins to run upon plaintiff’s release).

¶ 12. In opposing defendant’s motion, plaintiff effectively conceded that her claims were

each governed by three-year statutes of limitations which would normally have expired on April

16, 2023. However, she contended that her complaint was timely under a provision of Vermont’s

savings statute that allows a plaintiff to “commence a new action for the same cause within one

year after the determination of the original action, when the original action has been commenced

within the time limited by any statute of this State” but “dismissed for insufficiency of process

caused by unavoidable accident or by default or neglect of the officer to whom the process was

committed.” 12 V.S.A. § 558(a)(1). In the alternative, plaintiff briefly asserted that the statute of

limitations should be equitably tolled because “[a]lthough the State did not act with malice, it

2
Plaintiff’s claims against the State and other individual defendants remained pending in
Doe I. See No. 22-CV-02175.
6
nevertheless represented to plaintiff that it might be representing Ms. Camacho; if that had been

true, service would have been complete as of July 1, 2022[,] when the State signed the waiver of

service form.” Defendant responded in opposition, arguing, among other things, that § 558(a)(1)

applies only to insufficiency of process, and not the insufficiency of service of process at issue in

Doe I.3

¶ 13. In September 2023, the civil division issued an order granting defendant’s motion

to dismiss. It found that, even assuming for the sake of argument that the term “process”

encompassed “service of process,” § 558(a)(1) did not apply. First, the court reasoned that

plaintiff’s “utter failure to ask the court to extend the time for service until months after the

deadline expired” was not “ ‘unavoidable accident,’ only sloppiness and neglect of one of the most

basic duties of a litigator” “in no way justified” by the State’s request for an extension of time to

determine whether it would represent defendant. It further concluded that the service deadline did

not lapse due to “excusable neglect,” because seeking an extension was within plaintiff’s

reasonable control. The court also determined that there was no “neglect or default” by the

investigator—it credited his testimony that he believed service to be proper based on defendant’s

mother’s representation that her daughter lived with her and held that, though service was

ultimately invalid, the investigator himself “did nothing wrong.” Finally, the court rejected

3
As defendant notes, “insufficiency of process” and “insufficiency of service of process”
are independent grounds for dismissal under Vermont Rule of Civil Procedure 12(b)(4) and
12(b)(5). See V.R.C.P. 12(b)(4), (5). The former “concerns the form of the process,” while the
latter encompasses challenges to “the mode of delivery, the lack of delivery, or the timeliness of
delivery of the summons and complaint.” 5B C. Wright et al., Federal Practice and Procedure
§ 1353 (4th ed. 2024) (footnotes omitted) (noting that distinction between Rule 12(b)(4) and
12(b)(5) motions is sometimes misunderstood); see Reporter’s Notes—V.R.C.P. 12 (“This rule is
based on Federal Rule 12.”). Defendant thus argued that if the Legislature intended § 558(a)(1) to
encompass claims dismissed for insufficiency of service of process, it would have explicitly so
provided, and would not have omitted the word “service” as used in the predecessor statute.
However, defendant also acknowledged that we applied § 558(a)(1) in a case involving insufficient
service of process in Weisburgh v. McClure Newspapers, Inc., although there was no indication
there that any party raised the distinction between insufficiency of process and insufficiency of
service of process. 136 Vt. 594, 596, 396 A.2d 1388, 1390 (1979) (“The crucial issue here is the
failure to make timely service.”).
7
plaintiff’s equitable-tolling argument, explaining that it was defendant’s mother who misled the

investigator and there was no evidence that defendant was in any way responsible for her mother’s

actions. This appeal followed.

II. Analysis

¶ 14. This Court reviews an order granting a motion to dismiss de novo, applying the

same standard as the trial court: we take the factual allegations in the complaint as true, drawing

all reasonable inferences in plaintiff’s favor and disregarding defendant’s contravening assertions,

and will affirm only if it is beyond a doubt that there exist no facts or circumstances that would

entitle the plaintiff to relief. Davis v. Am. Legion Dep’t of Vt., 2014 VT 134, ¶ 12, 198 Vt. 204,

114 A.3d 99. Where a statute-of-limitations defense is raised in a motion to dismiss, the “motion

will be granted when ‘the face of plaintiff’s complaint show[s] [her] claim to be time-barred.’ ”

Sutton, 2022 VT 56, ¶ 80 (quoting Fortier v. Byrnes, 165 Vt. 189, 193, 678 A.2d 890, 892 (1996)).

A. Savings Statute

¶ 15. Plaintiff’s principal argument on appeal is that the trial court erred in concluding

that she was not afforded an additional year in which to file her complaint under Vermont’s savings

statute, 12 V.S.A. § 558. She contends that § 558(a)(1) applied here because her claims against

defendant in Doe I were dismissed for insufficient service of process caused by “unavoidable

accident,” or, in the alternative, the “default or neglect” of the serving officer. In response,

defendant reasserts her argument, see supra, ¶ 12 n.3, that § 558(a)(1) does not encompass claims

dismissed for insufficiency of service of process and contends that in any case, the circumstances

surrounding plaintiff’s failure to effectively serve her in Doe I did not constitute unavoidable

accident or default or neglect on the part of the process server.

¶ 16. We review the trial court’s interpretation of § 558(a)(1) without deference. Blake

v. Petrie, 2020 VT 92, ¶ 7, 213 Vt. 347, 245 A.3d 768 (explaining that where motion to dismiss

“turns on a question of statutory interpretation, our review of the trial court’s conclusions is

8
nondeferential and plenary”). Like the trial court, we do not reach the parties’ dispute over whether

§ 558(a)(1) applies to insufficiency of service of process. Even if it does, the statute still could not

apply here because the failure of service on defendant in Doe I was the result of neither

“unavoidable accident” nor the “default or neglect” of the private investigator to whom process

was committed. See 12 V.S.A. § 558(a)(1).

¶ 17. We turn first to plaintiff’s argument that defendant’s mother’s misrepresentation to

the investigator rendered plaintiff’s failure to properly serve defendant in Doe I an “unavoidable

accident” within the meaning of § 558(a)(1). Plaintiff contends that the trial court erred in

considering her failure to obtain a timely extension of the service deadline in its unavoidable-

accident analysis because her claims were dismissed for lack of proper service, not failure to make

timely service. She asserts that her claims could not have been dismissed on the latter ground

given the State’s indication that it might represent defendant and the trial court’s intervening

rulings with respect to the service deadline. Plaintiff argues that the court thus should have taken

a narrower view of the relevant circumstances and concluded that the accident was unavoidable

because plaintiff acted reasonably in first hiring the sheriff’s department to effect service, resorting

to an investigator when those efforts failed, and subsequently relying on the misrepresentation that

defendant’s mother made to that investigator.

¶ 18. We interpreted the term “unavoidable accident” in Tracy v. Grand Trunk Railway

Co., a case that turned on the application of a statutory precursor to § 558 similarly providing that

“if, in an action commenced within the time limited by the statute, the writ fails of sufficient service

or return by unavoidable accident,” the plaintiff could commence a new action for the same cause

within one year after determination of the original suit. 76 Vt. 313, 317, 57 A. 104, 105 (1904)

(citation omitted). We concluded that an “unavoidable accident” is not an accident “which no

possible diligence could guard against,” but rather one that occurs where “neither the plaintiff, nor

his attorneys, nor any one for whose conduct the plaintiff was responsible, was lacking in the

9
exercise of such due and reasonable diligence as the business in hand called for.” Id. at 317, 324-

25, 57 A. at 107 (quotation omitted).

¶ 19. Under this test, the unavoidable-accident analysis is not constrained in the manner

plaintiff suggests. The question for the court was whether plaintiff conducted herself with the

degree of “due and reasonable diligence as the business in hand called for.” Id. The “business in

hand” was service of process in compliance with the relevant procedural rules. To be sure, this

meant that plaintiff needed to serve defendant in a manner consistent with Rule 4. But it also

meant that plaintiff either needed to serve defendant within the time limit imposed by Rule 3(a) or

obtain an extension of the service deadline before it expired. As the trial court noted, this Court

“require[s] plaintiffs to strictly comply with the rules when expiration of the statute of limitations

is an issue.” Ferncenia v. Guiduli, 2003 VT 50, ¶¶ 12-13, 175 Vt. 541, 830 A.2d 55 (mem.)

(concluding that dismissal of action mandated where plaintiff failed to timely file waiver of service

of process as required under V.R.C.P. 3 and 4 and statute of limitations had expired).4

¶ 20. Plaintiff argues that her claims against defendant in Doe I could not have been

dismissed for lack of timely service because of the State’s initial indication that it was still

considering whether to represent defendant and the trial court’s later rulings regarding the service

deadline. For the reasons set forth below, we disagree. Defendant immediately raised this

argument upon appearing in the case, but the trial court did not reach it given its conclusion that

4
Plaintiff argues that Fercenia is distinguishable on its facts, has not been frequently cited
by this Court in the years since it issued, and has been criticized by a federal district court. See
Brooks v. K.S.T., Inc., No. 2:20-cv-00001, 2020 WL 5995210, at *6 (D. Vt. Oct. 9, 2020)
(observing that Fercenia’s requirement of strict compliance with time for service regardless of
actual notice is “arguably inconsistent with the underlying purpose of service of process which is
to provide timely notice of a claim”). We do not reach these arguments because they are raised
for the first time in plaintiff’s reply brief. See Robertson v. Mylan Lab’ys, Inc., 2004 VT 15, ¶ 2
n.2, 176 Vt. 356, 848 A.2d 310 (“We need not consider an argument raised for the first time in a
reply brief.”). However, we observe that the ultimate question presented is whether plaintiff and
her attorneys approached service of process with the requisite degree of diligence, see Tracy, 76
Vt. at 324-25, 57 A. at 107, and plaintiff in any event does not explain why the requisite degree of
diligence is not necessarily determined with reference to this Court’s existing case law.
10
service on defendant’s mother was no service at all. The court did not err in later recognizing that

plaintiff’s claims against defendant in Doe I could have been dismissed based on late service.

¶ 21. Plaintiff contends that her claims against defendant in Doe I could not have been

dismissed for failure to make timely service because the State acted as defendant’s representative

when it requested and received extensions of its time to answer the complaint. However, in each

of those motions the State expressly disclaimed any representation of defendant pending its

determination under 3 V.S.A. § 1102. As a result, these filings could not have been construed as

an appearance on behalf of defendant. V.R.C.P. 79.1(b), (c) (providing that attorney’s appearance

on behalf of defendant in case with multiple defendants is “deemed to be an appearance for all”

defendants only if attorney does not state appearance is “for one or more [defendants] only”). Nor,

as plaintiff suggests, could the State’s motions be otherwise construed as a request to extend the

time for defendant to answer. Because defendant had not yet been served with the summons and

complaint, her time to file a responsive pleading had not begun to run. See V.R.C.P. 12(a)(1)(A)

(providing that defendant shall serve answer “within 21 days after being served with the summons

and complaint, unless the court directs otherwise”).

¶ 22. Plaintiff also contends that the trial court “cited no law in support of the proposition

that litigants must serve individual employees even when the already-served State represents that

it may appear on their behalf.” She contends that such a rule would result in unnecessary service

fees, burden process servers, and require defendants who could be entitled to State representation

to retain private counsel or appear pro se to protect their rights. There are two problems with this

argument. First, plaintiff was not faced with a binary choice between serving defendant regardless

of the State’s indication that it might represent her or running the risk of the deadline expiring prior

to service. She was free to seek an extension of the time to serve defendant pending the State’s

representation decision under Rule 6(b)(1)(A). See Clark v. Baker, 2016 VT 42, ¶ 15, 201 Vt.

610, 146 A.3d 263 (explaining that “filing is the time of commencement of the action for purposes

11
of the statute of limitations, as long as the time of service complies with the service rule,” and

where an extension of the time for service is granted by the trial court, service within that period

“complies with the service rule”). More fundamentally, however, Rule 3 unambiguously requires

that a plaintiff who commences an action by filing a complaint serve all defendants within sixty

days, and nothing in Rule 4 contemplates that service on the State is service on an individual

defendant who was or is employed by the State where the State has yet to enter an appearance on

that defendant’s behalf. See V.R.C.P. 3(a); V.R.C.P. 4.

¶ 23. Next, plaintiff argues the trial court’s November 23 order constituted a sua sponte

extension of the service deadline. This is in no way a reasonable construction of the court’s order,

which provided in relevant part that, “no proof of service has been filed for two defendants, despite

the time for service having passed. They will be dismissed from the case unless proof of timely

service is filed within 30 days.” (Emphases added). The requirement of timely service and the

requirement to file proof of that timely service are separate obligations. Though the plaintiff must,

“within the time during which the person served must respond to the process, file the proof of

service with the court,” any “[f]ailure to make proof of service shall not affect the validity of the

service.” V.R.C.P. 4(i). The implication of the court’s November 23 order is thus obvious.

Plaintiff had thirty days to file proof of timely service on defendant—she did not have thirty more

days in which to effect timely service. Any purported misapprehension of the order’s terms cannot

constitute unavoidable accident.

¶ 24. The court’s order granting plaintiff’s December 2022 motion to extend time for

service on defendant does not alter the analysis. As defendant noted, she could not raise her

argument that plaintiff did not demonstrate excusable neglect in response to this motion because

she had not been served and therefore was not part of the case. The trial court appropriately

considered plaintiff’s conduct in allowing this deadline to expire as part of the package of

circumstances relevant to whether plaintiff’s attorneys were “lacking in the exercise of such due

12
and reasonable diligence as the business in hand called for.” Tracy, 76 Vt. at 324-25, 57 A. at 107.

It acted within its discretion in concluding, as part of this inquiry, that plaintiff’s failure to seek an

extension of the service deadline prior to its expiration was not attributable to excusable neglect.

See Clark, 2016 VT 42, ¶ 20 (“The decision of the trial court in deciding whether there has been

excusable neglect is discretionary, and our review is for abuse of discretion.”).

¶ 25. As we have explained, the “appropriate focus” of the excusable-neglect analysis is

“the reason for the delay, including whether it was in the reasonable control of the movant.” In re

Town of Killington, 2003 VT 87A, ¶¶ 16, 19, 176 Vt. 60, 838 A.2d 98 (concluding that failure to

file timely appeal where “internal office procedure breakdown in [party’s] counsel’s office resulted

in the failure to calendar the appeal deadline date” represented “type of inattention to detail”

insufficient to constitute excusable neglect). The court did not abuse its discretion in concluding

that it was within plaintiff’s power to seek a timely extension of the deadline to serve plaintiff and

that her failure to do so accordingly did not meet the “high” threshold for excusable neglect. Id.

¶¶ 16-17 (describing “appropriately hard line when it comes to determining when neglect that

stems from factors totally within the control of a party of its attorney is ‘excusable’ ”); see In re

von Turkovich, 2018 VT 57, ¶ 5, 207 Vt. 545, 191 A.3d 974 (“[A] party generally will not show

excusable neglect if the party fails to follow the clear dictates of a court rule, or cannot show

substantial diligence, and professional competence, but as the result of some minor neglect,

compliance was not achieved.” (quotations and citations omitted)).

¶ 26. Within days of filing her complaint, plaintiff knew it was possible that the State

would not represent three of the individual defendants, including defendant Camacho, and that

they therefore might need to be served individually. Plaintiff’s decision not to move to extend the

service deadline if she wished to await the State’s representation determination to save service

costs is not supported by any reasonable construction of the applicable Rules. See, e.g.,

Weisburgh, 136 Vt. at 597, 396 A.2d at 1390 (explaining that “V.R.C.P. 4 places the responsibility

13
for seeing to service squarely upon the plaintiff” and reasoning that “[m]isapprehension of the

county clerk’s function, in the face of V.R.C.P. 4, cannot meet the standard of unavoidable

accident”). Indeed, given the allegations of forceable sexual assault and sexual exploitation

plaintiff raised against defendant in her complaint, she should have apprehended the significant

possibility that the State would conclude that defendant was not entitled to defense under 3 V.S.A.

§ 1102. But even as the State repeatedly moved to extend its time to file a responsive pleading,

plaintiff allowed the sixty-day deadline for service on defendant to pass without ever moving for

an extension.

¶ 27. These are not the only considerations appropriately weighed in the unavoidable-

accident analysis. See Tracy, 76 Vt. at 324-25, 57 A. at 107. By her own admission, plaintiff

learned that the State would not represent defendant on October 12. However, she did not move

to extend the service deadline at that time. Indeed, there is no indication that plaintiff commenced

efforts to serve defendant until November 22. And although the sheriff’s office indicated that it

had been unable to locate defendant at the address plaintiff provided, plaintiff did not move to

make service by alternative means. See, e.g., V.R.C.P. 4(g)(1) (“At any time after the filing of the

complaint, the court, on motion upon a showing . . . that service cannot with due diligence be made

by another prescribed method, shall order service by publication.”). Further, the statute of

limitations for plaintiff’s claims had not yet expired on April 4, when defendant filed her motion

to dismiss. At this point, plaintiff knew that defendant was taking the position that she had not

been properly served. Plaintiff could have moved to voluntarily dismiss her claims against

defendant and refiled them prior to the expiration of the limitations period on April 16, thus

affording herself a fresh period in which to serve defendant. V.R.C.P. 41(a) (providing that

plaintiff may voluntarily dismiss any claim without prejudice and “without order of the court by

filing a notice of dismissal in any case in which the adverse party has not yet filed an answer or a

motion for summary judgment”). She did not do so.

14
¶ 28. Between the time when Doe I was filed and the trial court’s dismissal of plaintiff’s

claims against defendant from that case, plaintiff neglected to utilize any one of the myriad

procedural tools available to mitigate the risk that defendant would not be served in accordance

with the Rules. She thus failed to conduct herself with the degree of diligence required by the

matter at hand and, as a result, the dismissal of her claims cannot be attributed to unavoidable

accident. See Tracy, 76 Vt. at 324-25, 57 A. at 107.

¶ 29. To the extent that plaintiff suggests a different result should lie where these facts

are compared to those at issue in Tracy, we disagree. In that case the plaintiff was represented by

attorneys in St. Johnsbury and Island Pond. One day after the writ issued, the plaintiff’s St.

Johnsbury attorneys arranged for it to be forwarded by mail to his Island Pond attorney for service

on defendant. The Island Pond attorney—also a deputy collector of customs—was away on the

date it was delivered to his office, and another government official had authority, in his absence,

to open and examine official mail. When the Island Pond attorney returned approximately one

week later, “he did not find the writ,” and “knew nothing about it,” instead assuming that his

client’s St. Johnsbury attorneys were attending to service. Id. at 321, 57 A. at 106. The St.

Johnsbury attorneys discovered that the writ had not been returned several months later and wrote

to the Island Pond attorney, whereupon the writ was “found in a pigeon-hole” in his office, together

with “official mail which had come in envelopes of the same general kind.” Id.; see Pigeonhole,

Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/pigeonhole

[https://perma.cc/XA25-3T89] (defining “pigeonhole” to include “a small open compartment (as

in a desk or cabinet) for keeping letters or documents”). We noted that the Island Pond attorney

was acting in good faith and would have attended to service of the writ had it not been “in some

way mislaid in his office.” Tracy, 76 Vt. at 321-22, 57 A. at 106. We explained that this “tended

to show an unavoidable accident unless counsel, prior to the expiration of the time of service, were

wanting in due diligence in respect to the matter.” Id. at 322, 57 A. at 107.

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¶ 30. Though the unintentional pigeonholing of a writ within an attorney’s office, under

those circumstances, constituted unavoidable accident when Tracy was decided 120 years ago, the

“due and reasonable diligence” required of an attorney in attending to service of process is

necessarily assessed under contemporary standards. The trial court did not err in concluding that

there was no unavoidable accident here because plaintiff’s dilatory conduct with respect to service

on defendant fell short of those standards. As the Supreme Judicial Court of Maine held in Marble

v. Hinds—cited with approval in Tracy—“[t]hat can not be deemed unavoidable accident, which

could have been so easily avoided.” Marble v. Hinds, 67 Me. 203, 206 (1877) (explaining that

failure of service was not unavoidable accident because “[t]he risks of the probable absence of the

deputy sheriff from home on the last day of service and the possible miscarriage of the mail were

unnecessarily and negligently incurred”); see Tracy, 76 Vt. at 323-24, 57 A. at 107 (describing

Marble as “good law”).

¶ 31. Alternatively, plaintiff argues that 12 V.S.A. § 558(a)(1) applies because the

insufficiency of service of process on defendant in Doe I was caused by the “default or neglect”

of the process server. In plaintiff’s view, if the failure of service was an avoidable accident, then

the only means of avoiding it was for the investigator to assume that defendant’s mother was lying

or confused about where her daughter lived. If the investigator should have been this skeptical,

she contends, it must follow that trusting defendant’s mother was default or neglect, because under

those circumstances the process server should have known that trusting defendant’s mother was

likely to result in defective service and it would have been improper to attest to the completion of

service.

¶ 32. We first note that this argument proceeds from the same narrow view of the

unavoidable-accident analysis we reject above. In any event, plaintiff fails to explain how these

circumstances could constitute default or neglect on the part of the investigator. Indeed, she

acknowledges that there was “no way” for the investigator to know that defendant’s mother had

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not been truthful in telling him that defendant lived with her. Instead, she contends that § 558 is

remedial and therefore must be liberally construed to save her claims under Spear v. Curtis, 40 Vt.

59, 65 (1867), another early case decided under a predecessor savings statute.

¶ 33. In Spear, the plaintiff appropriately served a writ on the defendant and then returned

it to the magistrate. However, because the magistrate neglected to appear at the time and place set

for trial with the writ, “without any fault on the plaintiff’s part, he was prevented from bringing

his case to trial, of obtaining a judgment therein, or of having another magistrate continue the case

for trial at a future day, so that his suit came to an untimely end.” Spear, 40 Vt. at 64. We explained

that the savings statute is remedial and should be liberally construed “to give the party the right to

maintain a new suit, when, without his fault, the first, which was brought before his claim was

barred by the lapse of time, has failed before he could bring it to trial upon its merits.” Id. at 65

(emphasis added). We thus concluded that while the statute encompassed only neglect of the

process server, not the neglect of the magistrate, the latter was “of the same character, and although

not within the strict letter of the statute . . . is so clearly within the spirit, equity, and object of the

statute, that we think it must be regarded as fairly embraced within it.” Id. at 65.

¶ 34. It is true that § 558 is a remedial statute and therefore must be liberally construed

to effectuate the Legislature’s salutary intent. Leno v. Meunier, 125 Vt. 30, 33, 209 A.2d 485, 488

(1965). But our primary goal in interpreting a statute is always to give effect to the Legislature’s

intent. Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 14, 178 Vt.

35, 869 A.2d 145. To accomplish this end, we must look first to the statute’s language, because

we presume that the Legislature intended the plain, ordinary meaning of the words it chose. Shires

Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215. If the statute is clear on its

face, this is also where our inquiry ends—“we accept its plain meaning and will not rely on

statutory construction.” Id. “Only where the language creates uncertainty will we resort to canons

of statutory construction to ascertain the underlying legislative intent.” Billewicz v. Town of Fair

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Haven, 2021 VT 20, ¶ 14, 214 Vt. 511, 254 A.3d 194. This approach is no different with respect

to § 558. Indeed, in Leno v. Meunier, we acknowledged that § 558 is a remedial statute and must

be liberally construed, but explained that we nonetheless “cannot ignore the plain meaning of

unambiguous words or language, it being the long established rule that where the meaning of a

statute is plain there is no necessity for construction, and the courts must enforce it according to

its terms.” 125 Vt. 30, 33, 209 A.2d 485, 488-89 (1965) (explaining that relevant subsection of

§ 558 “specifically provides in clear, plain and definite language under what circumstances a

plaintiff has the right to bring a new action for the same cause” and declining to read nonexistent

provisions into this unambiguous language) (citation omitted).

¶ 35. Plaintiff does not explain how the plain, ordinary meanings of the terms “neglect”

or “default” are ambiguous as used in § 558(a)(1). “Where, as here, statutory language is

undefined, we accord the term its plain and ordinary meaning, which may be obtained by resorting

to dictionary definitions.” Hum. Rts. Def. Ctr. v. Correct Care Sols., LLC, 2021 VT 63, ¶ 16, 215

Vt. 362, 263 A.2d 1260 (quotation omitted). Black’s Law Dictionary defines “default” as “[t]he

omission or failure to perform a legal or contractual duty,” and “neglect” as “[t]he failure to give

proper attention to a person or thing; . . . the act of treating someone or something heedlessly or

inattentively.” Default, Black’s Law Dictionary (12th ed. 2024); Neglect, Black’s Law Dictionary

(12th ed. 2024). Plaintiff has identified no legal or contractual duty that required the investigator

to ascertain the truth of defendant’s mother’s statement, nor any additional attention which should

have led to discovery. Accordingly, it was neither default nor neglect within the meaning of the

statute for the investigator to rely on this representation.

¶ 36. Spear does not change this analysis. There, we were confronted with a situation

where plaintiff bore no responsibility whatsoever for the dismissal of his action. See Spear, 40 Vt.

at 64. For the reasons discussed above, that is not the case here. Regardless, to the extent Spear

suggests an approach to the application of § 558 at odds with the general principles of statutory

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construction we have repeatedly articulated since that time, it is overruled. If a plaintiff wishes to

present an argument for relief from a statute of limitations not contemplated by § 558, they remain

free to move for application of the equitable-tolling doctrine discussed below.

¶ 37. We thus reaffirm that “[t]he benefits of [§ 558(a)] are available only to those

coming within its provisions.” Weisburgh, 136 Vt. at 596, 396 A.2d at 1390. Because there was

no “unavoidable accident” and no “neglect or default” on the part of the process server, plaintiff

does not satisfy the provisions of the savings statute. Though plaintiff highlights this Court’s

general preference for deciding cases on their merits and argues that defendant would not be

prejudiced by a reversal, these broad considerations have no bearing on our analysis. The savings

statute itself reflects a public policy preference for deciding cases on their merits. See Reid v.

Spazio, 970 A.2d 176, 180 (Del. 2009) (explaining that Delaware’s similar savings statute “reflects

a public policy preference for deciding cases on their merits”). We must assume that the

Legislature accounted for considerations of prejudice in deciding how to effectuate this purpose.

See Vt. Nat’l Tel. Co. v. Dep’t of Taxes, 2020 VT 83, ¶ 26, 213 Vt. 421, 250 A.3d 567 (“It is a

basic presumption of statutory interpretation that language is inserted in a statute advisedly.”

(quotation omitted)). Like the federal judiciary, we will not disregard the procedural requirements

the legislative branch places on access to our courts out of “sympathy for particular litigants.”

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Rather, “ ‘[i]n the long run,

experience teaches that strict adherence to the procedural requirements specified by the legislature

is the best guarantee of evenhanded administration of the law.’ ” Id. (quoting Mohasco Corp. v.

Silver, 447 U.S. 807, 826 (1980)).

B. Equitable Tolling

¶ 38. In the alternative, plaintiff argues that the civil division erred in concluding that the

statute of limitations was not suspended by the equitable-tolling doctrine, a remedy stemming

“from the judiciary’s inherent power to formulate rules of procedure where justice demands it.”

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Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 687 S.E.2d 29, 32 (S.C. 2009). Though we have

had few opportunities to consider the precise contours of the doctrine in Vermont, we have

recognized that it may suspend a statute of limitations “where the defendant is shown to have

actively misled or prevented the plaintiff in some extraordinary way from discovering the facts

essential to the filing of a timely lawsuit.” Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 11,

186 Vt. 605, 987 A.2d 258 (mem.) (citing Beecher v. Stratton Corp., 170 Vt. 137, 143, 743 A.2d

1093, 1098 (1999) (recognizing that jurisdictions that have adopted equitable-tolling doctrine

“generally apply[] it only” in this circumstance or where “the plaintiff timely raised the precise

claim in the wrong forum”)).

¶ 39. Plaintiff argues that the doctrine may apply because defendant could have

purposefully evaded service in Doe I, and defendant’s mother may have been acting on defendant’s

behalf when she misled the investigator about defendant’s residence. She asserts that both

arguments turn on disputed facts and therefore should not have been rejected at this stage of the

litigation. We do not reach these contentions, however, because we conclude that plaintiff failed

to preserve them for appeal.

¶ 40. An issue is preserved for our review only where a party first presents it below “with

specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it.” State

v. Ben-Mont Corp., 163 Vt. 53, 61, 652 A.2d 1004, 1009 (1994). Before the trial court, plaintiff

did not argue for equitable tolling based on the conduct of defendant or her mother. Instead, she

briefly contended that equitable tolling was warranted by the actions of the State in indicating that

it might represent defendant—an argument entirely distinct from the one she presses on appeal.

See id. That the court analyzed plaintiff’s equitable-tolling argument as though directed at

defendant’s conduct does not alter our preservation analysis. As the party seeking to invoke

equitable tolling, plaintiff bore the burden of proving that its application was appropriate. See 51

Am. Jur. 2d Limitation of Actions § 157 (“Litigants face a considerable burden to demonstrate that

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equitable tolling of a statute of limitations applies, and the burden for such relief rests on the party

seeking it.” (footnotes omitted)); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

(explaining that litigant seeking equitable tolling bears burden of demonstrating that it applies).

The specific arguments she now seeks to advance were never presented to the trial court below.

Thus, the trial court never had cause to consider whether they could be resolved without a hearing.

See Messier v. Bushman, 2018 VT 93, ¶ 12, 208 Vt. 261, 197 A.3d 882 (explaining that court has

“considerable procedural leeway on how to determine” motion to dismiss for insufficiency of

service of process and observing that “an evidentiary hearing is preferable” where “written

materials have raised issues of credibility or disputed issues of fact” (quotation omitted) (emphasis

added)). The preservation doctrine forecloses plaintiff’s argument that the trial court failed to

adequately explore the factual basis of an equitable-tolling theory she never raised below.

III. Conclusion

¶ 41. Plaintiff has not shown that the trial court erred in concluding that 12 V.S.A.

§ 558(a)(1) did not save her claims because there was neither “unavoidable accident” nor “default

or neglect” on the part of the officer to whom process was committed, and she did not preserve her

equitable-tolling argument for appeal. As a result, we affirm the trial court’s dismissal of

plaintiff’s claims as time-barred.

Affirmed.

FOR THE COURT:

Associate Justice

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