State v. Codling Brothers

7ermont Superior Court
Filed 06/05/24
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-00392
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

State of Vermont v. Codling Brothers Logging et al

ENTRY REGARDING MOTION
Title: Motion for Judgment on the Pleadings (Motion: 2)
Filer: Stephen J. Craddock
Filed Date: March 27, 2024

The Codling Defendants have moved for judgment on the pleadings asserting that the
conduct alleged cannot be considered "in commerce" under Vermont's Consumer Protection Act
(CPA). The State has opposed the motion.
The standard for granting dismissal based on the pleadings is exacting. The question is
whether, based solely on the pleadings, the moving party is entitled to judgment as a matter of
law. Reynolds v. Sullivan, 136 Vt. 1, 3 (1978). "For the purposes of the motion 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." Bressler v. Keller, 139 Vt. 401, 403 (1981).

As the federal courts have repeatedly made plain: "A court applies the same standard to a
motion for judgment on the pleadings as it does to a motion to dismiss for failure to state a claim
under Rule 12(b)(6)." Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2008). Our
Supreme Court has held that dismissal under Vt. R. Civ. P. 12((b)(6) "is proper only when it is
beyond doubt that there exist no facts or circumstances consistent with the complaint that would
entitle Plaintiff to relief." Bock v. Gold, 2008 VT 81, 1 4, 184 Vt. 575, 576 (mem.) (quoting
Union Mut. Fire Ins. Co. v. Joerg, 2003 VT 27, 1 4, 175 Vt. 196, 198)).

Accordingly, where "a plaintiff's pleadings contain allegations that, if proved, would
permit recovery, a defendant may not secure a judgment on the pleadings." Thayer v. Herdt, 155
Vt. 448, 456 (1990); see Knight v. Rower, 170 Vt. 96, 98 (1999) Gudgment warranted only if
"pleadings contain no allegation that would permit recovery").

Here, the motion founders on those high shoals. While Defendants maintain that its
contracts are highly individualized and separately negotiated for each person, which makes their
circumstances similar to that discussed in Foti Fuels, Inc. v. Kurrle Corp., 195 Vt. 524 (2013),
such facts cannot be gleaned definitively from the Complaint. Instead, the Complaint states that
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24-CV-00392 State of Vermont v. Codling Brothers Logging et al
the Defendants offer logging services as a business to Vermonters, that they reach out to
consumers to solicit their business, and that they then engage in a similar pattern of misleading,
deceptive, and fraudulent conduct towards those consumers who choose to sign their form
contracts for their services.
While highly individualized contracts for the sale of a business, as in Foti Fuels or for
complex product arrangements between businesses as in Barton Solar, LLC v. RBI Solar, Inc.,
Case No. 5:21-cv-25-GWC, 2021 WL 3109620 (D. Vt. Jul 22, 2021), have been held not to be
“in commerce” under the CPA, the conduct alleged in the Complaint does not fit into such a
narrow category -- at least at this stage. Instead, the Complaint alleges a general business that
engages in similar deceptive acts in commerce with multiple consumers. To the extent the actual
facts of the individual transactions may lean more towards Foti Fuels or Barton Solar, is a
question that needs to left for later development. Any such determinations would need to be
made on more detailed factual record. For now, the Court certainly cannot say that bare
allegations of the Complaint fail to state a claim under the CFA.
Given that determination, the Court has no need to delve into and create new Vermont
law on the issue of estoppel at the present juncture.
The motion is denied.
Electronically signed on Wednesday, June 5, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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24-CV-00392 State of Vermont v. Codling Brothers Logging et al