Stephens v. Gilmour

"ermont Superior Court
Filed 01/08/25
Washington Unit

VERMONT SUPERIOR COURT or ¥
ER} CIVIL DIVISION
Washington Unit Case No. 24-CV-04273
65 State Street
Montpelier VT 05602
802-828-2091 Zar

www.vermontjudiciary.org

Juliet Stephens v. Shannon Gilmour et al

Opinion and Order on
Ms. Gilmour's Motion for Joinder;
Ms. Stephens' Motion to Dismiss Counterclaims;
Ms. Stephens' Motion for Judgment on the Pleadings; and
Ms. Stephens' Motion to Strike and to Order Sanctions

This is a residential landlord-tenant case in which Plaintiff-Landlord Juliet

Stephens is seeking to evict Defendants Shannon Gilmour and her minor daughter, M.G.,

from the home that Ms. Stephens owns and where all three reside in shared living space.

It is apparent that Ms. Stephens and Ms. Gilmour had a falling out after an initial

written one-year lease expired, and Defendants have remained in possession

notwithstanding a notice to vacate, leading to this case. Ms. Gilmour represents herself

in this case and appears on behalf of M.G. as M.G.'s parent/next friend. M.G. is not

represented by counsel. In response to the complaint, both Ms. Gilmour and M.G.

purported to file counterclaims against Ms. Stephens styled as (1) breach of the implied

warranty of habitability, (2) breach of the warranty of habitability, (3) retaliatory

eviction, (4) & (5) two counts of intentional infliction of emotional distress (IIED), (6)

defamation, and (7) abuse of process.

Ms. Gilmour then filed a "motion for joinder" on behalf of herself only. In that

filing, she appears to characterize three of her counterclaims as involving litigation

conduct of the two attorneys representing Ms. Stephens in this case, Attorneys Claudine
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Safar and Miles Stafford, and proposes that the Court declare that their joinder is

needed for the just adjudication of this case under Vt. R. Civ. P. 19 (joinder of persons

needed for just adjudication).

Ms. Stephens then filed a motion to dismiss Ms. Gilmour’s counterclaims for

failure to state a claim, a motion for judgment on the pleadings seeking to establish her

immediate entitlement to writ of possession, and a Vt. R. Civ. P. 12(f) motion to strike

certain materials from the pleadings and a motion.1

I. Analysis

A. M.G.’s Unrepresented Status

As a preliminary matter, the Court calls attention to M.G.’s status as a minor

without legal counsel. A minor child is an “infant” who lacks capacity to sue or be sued

except through a competent representative. Vt. R. Civ. P. 17(b). In this case, Ms.

Gilmour is acting as such a representative for M.G., which cures M.G.’s lack of capacity.

However, Ms. Gilmour, acting pro se, has also purported to file on M.G.’s behalf an

answer and a series of counterclaims. In other words, she is serving not merely as next

friend to M.G. but she is litigating for her in a pro se capacity. But the non-attorney

representative of a party cannot act in a pro se capacity for that party—a licensed

attorney must be retained; otherwise, the non-attorney is practicing law without a

license. See Est. of Snelgrove v. LeBlanc, 2023 VT 58, ¶¶ 6–7. As one Court explained:

“[A] non-attorney parent must be represented by counsel in bringing an
action on behalf of his or her child.” Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); see also McFarlane v. Roberta,
891 F. Supp. 2d 275, 283 (D. Ct. 2012) (same); Myers v. Loudoun Cty. Pub.
Sch., 418 F.3d 395, 401 (4th Cir. 2005) (“We . . . join the vast majority of our
sister circuits in holding that non-attorney parents generally may not

1 Ms. Stephens did not also file a motion to dismiss M.G.’s identical counterclaims.
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litigate the claims of their minor children in federal court.”). As the Second
Circuit noted, “[i]t goes without saying that it is not in the interests of
minors or incompetents that they be represented by non-attorneys. Where
they have claims that require adjudication, they are entitled to trained legal
assistance so their rights may be fully protected.” Id. “[A] non-attorney is
not allowed to represent another individual . . . without the assistance of
counsel. If the representative of the minor or incompetent person is not
himself an attorney, he must be represented by an attorney in order to
conduct the litigation.” Berrios v. New York City Hous. Auth., 564 F.3d 130,
134 (2d Cir. 2009).

Kisonak v. Snyder, No. 835-8-15 Cncv, slip op. at 2 (Vt. Super. Ct. Feb. 2, 2016) (Toor, J.).

Ms. Gilmour is not a licensed attorney. See https://www.vermontjudiciary.org/sites/

default/files/documents/AttorneyGoodStanding_40.pdf. She may not provide legal

representation or act pro se for M.G. in this case.

Accordingly, Ms. Gilmour shall obtain counsel for M.G. or show cause as to why

M.G.’s counterclaims should not be dismissed within 30 days.

Separately, however, the Court lacks clarity as to why M.G. needs to be a formal

party to this case at all. While M.G. plainly lives at the residence, it would appear, at

first blush, that her claim to the tenancy is derivative of her mother’s. If it is determined

that Ms. Stephens is entitled to a writ of possession, there appears no obvious risk that

M.G. would somehow seek to retain possession as an individual, nevertheless. It is, thus,

not plain to the Court that she is necessary to afford complete relief in this case.

While there may be no express legal prohibition against naming all those living at

a dwelling in an eviction case, Ms. Stephens cites no authority of any consequence for

requiring that M.G. be a party to this case and has identified no clear need for her

presence. She cites in support only one Vermont Supreme Court case for this

proposition: “Vermont courts have held that children are subject to eviction proceedings.”

Ms. Stephens’ Motion to Dismiss Counterclaims at 12 (filed December 6, 2024) (citing
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Craddock v. Heffermehl, No. 2018-126, 2018 WL 5785456, at *4 (Vt. Nov. 2, 2018)

(unpub. mem.).

Heffermehl, though, is an unpublished entry order and by definition has no

precedential value. See V.R.A.P. 33.1(d)(1). Additionally, on the one hand, Heffermehl

merely affirmed the trial court’s ruling that Mr. Heffermehl’s children had the status of

minor occupants in the parent’s household and could be evicted with their parent. On

the other, it did entertain independent appeals from the children and considered whether

they had independent standing to resist the writ of possession.

Heffermehl provides no express basis for requiring that M.G. remain a formal

party in this case–even if originally named in good faith as tenant at the residence. It

arguably suggests that a minor might be named in such a suit but also indicates they are

not typically needed to afford full relief. Accordingly, Ms. Stephens shall show cause as

to why her claims against M.G. should not be dismissed within 30 days.2

B. Ms. Gilmour’s Motion for Joinder

The Court declines to rule that opposing counsel, Attorneys Safar and Stafford, are

missing persons needed for the just adjudication of this case on the narrow procedural

vehicle provided by Rule 19. Rule 19(a) states: “A person who is subject to service of

process shall be joined as a party in the action if (1) in the person’s absence complete

relief cannot be accorded among those already parties, or (2) the person claims an interest

relating to the subject of the action and is so situated that the disposition of the action in

2 Alternatively, the parties could simply agree to withdraw all claims asserted by and

against M.G. and dismiss her from this case. That would permit all to focus on the viable
claims remaining after this ruling.

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the person’s absence may: (i) as a practical matter impair or impede the person's ability

to protect that interest or (ii) leave any of the persons already parties subject to a

substantial risk of incurring double, multiple, or otherwise inconsistent obligations by

reason of the person's claimed interest.” Vt. R. Civ. P. 19(a) (emphasis added).

Attorneys Safar and Stafford are not parties to this case, and they are irrelevant to

complete relief “among those already parties.” Moreover, they assert no interests of their

own that would in any way be prejudiced by a judgment in this case.

This motion is denied.

C. Ms. Stephens’ Motion to Dismiss Counterclaims

Ms. Stephens asks the Court to dismiss all counterclaims asserted by Ms. Gilmour

for failure to state a claim. As noted, see supra n.1 at 2, M.G.’s counterclaims are not

now at issue.

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, 316–17 (citations

omitted); see also 5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.)

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(“Ultimately, the burden is on the moving party to prove that no legally cognizable claim

for relief exists.”).

Ms. Gilmour’s retaliatory eviction and breaches of the warranty of habitability

claims (Counts 1–3) are sparsely pled, but they are stated sufficiently for Vt. R. Civ. P. 8

purposes.

The two IIED claims (Count 4–5) do not survive the Rule 12(b)(6) standard. To

survive dismissal of an IIED claim, a plaintiff must allege: “(1) conduct that is extreme

and outrageous; (2) conduct that is intentional or reckless; and (3) conduct that causes

severe emotional distress.” Baptie v. Bruno, 2013 VT 117, ¶ 24, 195 Vt. 308, 318. The

third Restatement clarifies that extreme and outrageous are separate issues:

The adjectives “extreme” and “outrageous” are used together in a fashion
that might suggest that each merely emphasizes the other, rather than
serving a distinct role. However, some conduct that may be outrageous—for
example, marital infidelity—is sufficiently common that it could not be
characterized as extreme (although today it may also not be outrageous).
Similarly, some extreme conduct—climbing Mt. Everest, for example—is not
outrageous. Thus, this double limitation, “extreme and outrageous,”
requires both that the character of the conduct be outrageous and that the
conduct be sufficiently unusual to be extreme.

Restatement (Third) of Torts: Phys. & Emot. Harm § 46 cmt. d. To satisfy the

outrageousness element, the defendant's behavior must “surpass the bounds of decency

that can be tolerated in a civilized society.” Fromson v. State, 2004 VT 29, ¶ 15, 176 Vt.

395, 399. A plaintiff must also allege that the defendant’s actions caused him to suffer

“distress so severe that no reasonable person could be expected to endure it.” Baldwin v.

Upper Valley Services, Inc., 162 Vt. 51, 57 (1994).

The thrust of the first IIED claim is that at some point Ms. Gilmour realized that

the house lacked smoke and carbon monoxide detectors. On Ms. Gilmour’s complaint,

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Ms. Stephens purchased them but did not install them. Ms. Gilmour realized a long time

later that they still had not been installed, complained again, and they were installed.

She alleges distress at finding out that she had been living without them.

As a matter of law, and without any exacerbating circumstances, these

circumstances are insufficient to support an IIED claim. The temporary lack of detectors

probably is not outrageous to an IIED standard but it certainly is not so unusual as to be

extreme.

The second IIED claim is that M.G. suffered distress by being served process and

otherwise being made a participant to this case. The Court declines to address the

potential merit of such a claim, as asserted by M.G., here. Any such claim belongs to

M.G., not Ms. Gilmour, and M.G. in fact has asserted that claim against Ms. Stephens.

To the extent that Ms. Gilmour alleges that she experienced distress at her

daughter being served and included in this suit, the Court is not persuaded that either

can amount to IIED as to Ms. Gilmour. M.G. was a tenant at the location. And children

may be sued (through a representative) and served process under Vt. R. Civ. P. 4(d)(1)(i),

which appears to be what happened here. The manner of service was up to the process

server, not Ms. Stephens. However disquieting or upsetting, filing a civil lawsuit—even

an allegedly unnecessary—is not both extreme and outrageous as those terms are

defined in the IIED context. They happen with some frequency.

Ms. Gilmour’s IIED claims are dismissed.

Ms. Gilmore’s defamation claim (Count 6) also is dismissed. That claim asserts

that M.G.’s inclusion as a party in this case defames M.G., not Ms. Gilmour. Any such

claim belongs to M.G. alone.

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Ms. Gilmour’s abuse of process claim (Count 7) is not dismissed at this time. “In

Vermont, a plaintiff alleging the tort of abuse of process is required to plead and prove:

‘1) an illegal, improper or unauthorized use of a court process; 2) an ulterior motive or an

ulterior purpose; and 3) resulting damage to the plaintiff.’” Wharton v. Tri-State Drilling

& Boring, 2003 VT 19, ¶ 11, 175 Vt. 494, 496. Ms. Gilmour alleges that Ms. Stephens

knew that there is no redress she might legitimately be entitled to by suing M.G. and,

instead, did it only to produce distress and force Ms. Gilmour voluntarily to vacate the

living space or otherwise compromise the defenses and counterclaims she has asserted

here. Those allegations are sufficient to survive dismissal under the Alger standard.

D. Ms. Stephens’ Motion for Judgment on the Pleadings

Ms. Stephens claims that the pleadings alone show that she is entitled to

judgment and an immediate writ of possession.

As the Vermont Supreme Court has explained, the question posed by a Vt. R. Civ.

P. 12(c) motion for judgment on the pleadings, “‘is whether, once the pleadings are closed,

the movant is entitled to judgment as a matter of law on the basis of the pleadings.’ ‘For

the purposes of [a] motion [for judgment on the pleadings] all well pleaded factual

allegations in the nonmovant’s pleadings and all reasonable inferences that can be drawn

therefrom are assumed to be true and all contravening assertions in the movant’s

pleadings are taken to be false.’ ‘A defendant may not secure judgment on the pleadings

if contained therein are allegations that, if proved, would permit recovery.’” Island

Indus., LLC v. Town of Grand Isle, 2021 VT 49, ¶ 10, 215 Vt. 162, 169 (citations omitted).

At a minimum, Ms. Gilmour asserts that the parties entered into an oral lease

after the written lease expired, that she is in compliance with all terms (including

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payment of rent) of that oral lease, and that this case was filed in retaliation for her

request for a code inspection. The Court cannot determine such matters based on the

pleadings alone. This motion is denied.

E. Ms. Stephens’ Motion to Strike and to Order Sanctions

Ms. Stephens requests that the Court strike from the record allegations appearing

in certain of Ms. Gilmour’s filings revealing Ms. Stephens’ alleged mental health history.

Ms. Gilmour asserts that she has not included that information for any improper purpose

but rather wishes to inform the Court that Ms. Stephens’ mental condition or treatment

may account for why she has forgotten certain facts or unwittingly misled her own

attorneys. She does not otherwise oppose the motion.

It is clear that the offensive allegations are irrelevant to the substance of the

filings in which they appear. While Ms. Gilmour may have made those allegations in

good faith, they have no apparent function other than to embarrass or anticipatorily

attack Ms. Stephens’ credibility or capacity notwithstanding that she is represented by

counsel. The Court grants the motion to strike, in part, under Vt. R. Civ. P. 12(f) and, to

the extent necessary, under Vt. R. Pub. Acc. Ct. Rec. 9.3

Accordingly, the Court will seal the filings identified below. Ms. Gilmour shall re-

file those documents with the indicated material deleted or redacted. The replacement

filings shall otherwise be identical to the originals.

1. Ms. Gilmour’s Answer (filed Nov. 18, 2024), omitting the paragraph
beginning on page 4 that starts with “I bring to the attention” and ending on page
5 with “her own guardian.”

3 Rule 12(f) applies to the pleadings only. A motion is not a pleading. See Vt. R. Civ. P.
7.
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2. M.G.’s Answer (filed Nov. 18, 2024), omitting the paragraph on page 5
that starts with “I bring to the attention” and ending with “her own guardian.”

3. Ms. Gilmour’s Motion to Join (filed Nov. 18, 2024), omitting the two
consecutive sentences on page 2 that start with “Rule 1.14 of the ABA” and end
with “experienced by Counterdefendant.”

4. Ms. Gilmour’s Amended Motion to Join (filed Nov. 19, 2024), omitting the
two consecutive sentences on page 2 that start with “Rule 1.14 of the ABA” and
end with “experienced by Counterdefendant.”

The motion to strike otherwise is denied. The Court finds no basis to award sanctions at
this time.

Conclusion

For the foregoing reasons:

(a) Ms. Gilmour shall obtain counsel for M.G. or show cause as to why M.G.’s
counterclaims should not be dismissed within 30 days. The failure to do so will result in
the dismissal of M.G.’s counterclaims.

(b) Ms. Stephens shall show cause as to why her claims against M.G. should not be
dismissed within 30 days. The failure to do so will result in the dismissal of the claims
against M.G.

(c) Ms. Stephens’ motion to dismiss counterclaims is granted, in part, and denied,
in part. Ms. Gilmour’s IIED and defamation counterclaims are dismissed. Her warranty
of habitability, retaliatory eviction, and abuse of process claims are not dismissed.

(d) Ms. Stephens’ motion for judgment on the pleadings is denied.

(e) Ms. Stephens’ motion to strike is granted, in part and denied, in part. The
Court will seal the filings identified above. Ms. Gilmour shall re-file those documents
with the indicated material deleted or redacted within 45 days. The replacement filings
shall otherwise be identical in substance to the originals.

Electronically signed on Monday, January 6, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge
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