Aleksandra Veljovic v. TD Bank, N.A.

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: 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.

2025 VT 38

No. 24-AP-352

Aleksandra Veljovic Supreme Court

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

TD Bank, N.A. et al. May Term, 2025

Samuel Hoar, Jr., J.

Robert J. Kaplan and Christopher William Hardy of Kaplan and Kaplan, Burlington, for
Plaintiff-Appellant.

Elizabeth M. Lacombe and Michael Zullo of Duane Morris, LLP, Hartford Connecticut, for
Defendant-Appellee TD Bank N.A.

Susan J. Flynn of Flynn Messina Law Group, PLC., Burlington, for Defendant-Appellee
Zlata Cavka.

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

¶ 1. REIBER, C.J. Plaintiff Aleksandra Veljovic appeals from the dismissal with

prejudice of her negligence, negligent supervision, and respondeat superior claims against TD

Bank, N.A. and its former employee, Zlata Cavka. Plaintiff alleged that the employee negligently

notarized a fraudulent document that was ultimately used by plaintiff’s ex-husband to secure a

divorce order in Serbia leading to her loss of marital property. She argued that TD Bank should

be held liable under the legal theories cited above. The court dismissed plaintiff’s complaint,

concluding that plaintiff could not recover for purely economic losses and she failed to show the
existence of a special relationship between the parties. It also denied plaintiff’s post-judgment

request to amend her complaint. We agree with the court’s conclusions and therefore affirm.

I. Background

¶ 2. Plaintiff filed her complaint in May 2024, alleging the following facts. Plaintiff

and her ex-husband were married in Serbia, later immigrating to the United States and settling in

Vermont. In 2019, plaintiff’s husband abandoned her and their minor daughter. At some point

thereafter, plaintiff initiated a divorce proceeding in Vermont. The divorce was finalized in 2022,

without husband’s appearance or participation. The Vermont divorce decree, among other things,

awarded plaintiff the couple’s marital property in Serbia.

¶ 3. Shortly after the Vermont divorce was finalized, plaintiff learned that her ex-

husband had obtained a divorce decree in Serbia in July 2021. She had no prior awareness of the

Serbian divorce proceeding. The Serbian divorce decree awarded the couple’s marital property in

Serbia to the ex-husband. This was the same marital property awarded to plaintiff in the Vermont

divorce decree.

¶ 4. After investigation, plaintiff discovered that her ex-husband had used a Serbian

document to authorize an attorney in Serbia to represent plaintiff’s interests in the Serbian divorce.

Plaintiff did not sign the document, and her signature was a forgery. Cavka provided notary

services in her capacity as a bank employee, and she allegedly notarized the Serbian document in

July 2021 while employed by TD Bank. Plaintiff never met Cavka, and Cavka had never notarized

a document bearing plaintiff’s true signature.

II. Procedural History

¶ 5. TD Bank moved to dismiss plaintiff’s complaint pursuant to Vermont Rule of Civil

Procedure 12(b)(6), arguing that (1) plaintiff’s claims were barred by the economic-loss rule,

(2) neither TD Bank nor Cavka owed plaintiff “any independent duty of care,” and (3) plaintiff

failed to plead facts establishing necessary causation. Plaintiff opposed defendant’s motion.

2
¶ 6. In August 2024, the court granted TD Bank’s motion, dismissing plaintiff’s claims

against it with prejudice. The court determined that plaintiff sought compensation solely for

economic losses arising from her ex-husband’s use of the fraudulently notarized document. The

court explained that the economic-loss rule generally prohibits recovery in tort for purely economic

losses. It went on to explain that a plaintiff asserting a negligence claim may be able to recover

for purely economic losses only in limited circumstances, such as where there is a “special” or

professional relationship that creates a duty of care independent of contractual obligations between

the plaintiff and the defendant. The court rejected plaintiff’s argument that her case fell within the

professional services exception, concluding that plaintiff failed to show that she had a special

relationship with either defendant. It based this conclusion on plaintiff’s complaint where she

admitted she had never met defendant Cavka and failed to allege that she was a TD Bank

accountholder. The court held that her claims against TD Bank did not fall within the narrow

exception to the economic-loss rule and failed as a matter of law. The court ordered plaintiff to

show cause why it should not dismiss the claims against defendant Cavka for the same reason.

Plaintiff failed to respond, and the court dismissed plaintiff’s claims against Cavka.

¶ 7. Plaintiff moved for reconsideration and also sought to amend her complaint. The

court denied both motions, explaining that plaintiff raised no issues of fact or law that the court

had not already considered. This appeal followed.

III. Discussion

¶ 8. Plaintiff first argues that the trial court erred in dismissing her complaint because

she alleged sufficient facts to show a “special relationship” between the parties.

¶ 9. This Court “review[s] the trial court’s disposition of a motion to dismiss de novo,

and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959

A.2d 990 (mem.). A motion to dismiss may be granted “only if it is beyond doubt that there exist

no facts or circumstances that would entitle the plaintiff to relief.” Birchwood Land Co. v. Krizan,

3
2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009 (quotation omitted). In deciding the motion, we

“assume that the facts pleaded in the complaint are true and make all reasonable inferences in the

plaintiff’s favor.” Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 209 Vt. 514,

208 A.3d 609. “The purpose of a dismissal motion is to test the law of the claim, not the facts

which support it.” Id. (quotation omitted).

¶ 10. “[N]egligence law does not generally recognize a duty to exercise reasonable care

to avoid intangible economic loss to another unless one’s conduct has inflicted some

accompanying physical harm, which does not include economic loss.” Gus’ Catering, Inc. v.

Menusoft Sys., 171 Vt. 556, 558, 762 A.2d 804, 807 (2000) (mem.) (quotation omitted). Economic

loss is defined as “damages other than physical harm to persons or property.” Springfield

Hydroelectric Co. v. Copp, 172 Vt. 311, 315, 779 A.2d 67, 71 (2001) (quotation omitted).

¶ 11. Thus, the economic-loss rule “prohibits recovery in tort for purely economic

losses.” Long Trail House Condo. Ass’n v. Engelberth Const., Inc., 2012 VT 80, ¶ 10, 192 Vt.

322, 59 A.3d 752 (quotation omitted). In Long Trail, we explained that “[t]he rule serves to

maintain a distinction between contract and tort law” because “[i]n tort law, duties are imposed by

law to protect the public from harm, whereas in contract the parties self-impose duties and protect

themselves through bargaining.” Id. (quotation omitted).

¶ 12. We determine application of an exception to the economic-loss rule primarily based

on the duties that exist between the parties. Long Trail, 2012 VT 80, ¶ 13. Vermont law recognizes

that, in some circumstances, a plaintiff asserting a negligence claim may be able to recover for

purely economic losses where there is a special relationship between the plaintiff and the

defendant, and the defendant has assumed the responsibility not to violate a professional duty owed

to the plaintiff. See EBWS, LLC v. Britly Corp., 2007 VT 37, ¶ 31, 181 Vt. 513, 928 A.2d 497;

Long Trail, 2012 VT 80, ¶ 13. Our holdings support that there “might be recovery for purely

economic losses in a limited class of cases involving violation of a professional duty.” Long Trail,

4
2012 VT 80, ¶ 13 (quotation omitted). “Although a [professional] license may be indicative” of a

special relationship, “it is not determinative.” EBWS, 2007 VT 37, ¶ 31. The “key” to determine

whether a professional service creates an independent duty of care “is not whether one is licensed

in a particular field” but “rather, the determining factor is the type of relationship created between

the parties.” Long Trail, 2012 VT 80, ¶ 13 (quotation omitted). The analysis “turns on whether

there is a duty of care independent of any contractual obligations” arising from a special

relationship between the parties. Springfield Hydroelectric Co., 172 Vt. at 316, 779 A.2d at 71-

72 (quotation and emphasis omitted).

¶ 13. A special relationship requires a close relationship of trust, confidence, or reliance

between the parties. See, e.g., Walsh v. Cluba, 2015 VT 2, ¶ 30, 198 Vt. 453, 117 A.3d 798

(observing that “doctor-patient or attorney-client” relationships are classic examples); Sachs v.

Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 29 n.4, 206 Vt. 157, 179 A.3d 182 (recognizing

that “purely monetary damages” are recoverable in a legal malpractice action); Zeno-Ethridge v.

Comcast Corp., 2024 VT 16, ¶ 20, 219 Vt. 121, 315 A.3d 978 (“In other areas of tort law . . . we

define the term ‘special relationship’ narrowly to include relationships that involve control or

professional care over others, such as between a parent and child or a mental-health professional

and patient.”); Estate of Alden v. Dee, 2011 VT 64, ¶ 32, 190 Vt. 401, 35 A.3d 950 (“The duty to

disclose arises out of a special relationship of confidence or trust—such as the fiduciary

relationship between trustee and beneficiary.”).

¶ 14. In Sutton v. Vermont Regional Center, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608,

we identified facts that support the existence of a special relationship. These include (1) whether

the defendant “initiated a close relationship” with the plaintiff; (2) whether the defendant endorsed

an action to “members of the public generally” or through personal solicitation and individualized

relationships; and (3) whether the defendant targeted “a narrow class of identified people” who

“relied on” the defendant’s representations. See Id. ¶ 33.

5
¶ 15. Here, plaintiff failed to allege facts that would enable recovery under an exception

to the economic-loss rule. In her complaint, plaintiff admitted that she never met or used the

services of the notary, defendant Cavka. Therefore, plaintiff’s complaint lacked any allegations

indicating that she had any relationship, much less a close or “special” relationship, with Cavka or

that she relied on Cavka’s notarial services. The only connection plaintiff alleges between herself

and Cavka was that Cavka notarized a document purportedly containing plaintiff’s signature,

allegedly presented to Cavka by plaintiff’s ex-husband. Without facts that establish a relationship

of trust, confidence, or reliance between plaintiff and Cavka, plaintiff’s claims are barred by the

economic-loss rule.

¶ 16. Plaintiff attempts to overcome her lack of personal relationship by claiming that

Cavka’s status as a notary public is itself sufficient to establish a special relationship. Plaintiff

argues that the notary’s services qualify under the professional services exception because a notary

is a public officer who owes a duty to the public to perform her service with diligence. Plaintiff

cites cases from the Third Circuit and several state courts in support of this argument, requesting

this Court follow the guidance of these jurisdictions. Plaintiff failed to raise this argument in the

trial court prior to its dismissal decision, arguing only that the notary owed her a duty as the person

whose signature is being notarized. Plaintiff raised her argument that a notary owes a duty to the

public for the first time in her V.R.C.P. 59(e) motion to reconsider. However, a “Rule 59(e) motion

may not be used to relitigate old matters, or to raise arguments or present evidence that could have

been raised prior to the entry of judgment.” 11 C. Wright & A. Miller, Federal Practice and

Procedure § 2810.1 (3d ed. 2024) (footnotes omitted); see also Reporter’s Notes—2006

Amendment, V.R.C.P 59 (noting amendment to Rule 59(e) for “conformity with the Federal

Rules”). Because plaintiff did not raise this argument in the trial court prior to judgment, it is not

preserved for appeal. Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 27, 200 Vt. 465, 133

A.3d 836 (observing that theory of liability not argued below is not preserved for appeal).

6
¶ 17. Following the trial court’s ruling, plaintiff sought to amend her complaint to include

an allegation that she held an account at TD Bank to support her contention that she shared a

special relationship with the bank.

¶ 18. Vermont Rule of Civil Procedure 15(a) provides that a party may amend a pleading

after entry of judgment “only by leave of court or by written consent of the adverse party.”

Additionally, for the court to grant leave to amend post-judgment, the plaintiff must first succeed

in having the final judgment set aside under Rule 59(e), which did not occur here. See Stowe

Aviation, LLC v. Agency of Com. & Cmty. Dev., 2024 VT 11, ¶¶ 18, 21, 219 Vt. 70, 312 A.3d

1017 (holding that plaintiff seeking to amend complaint post-judgment must first have final

judgment set aside under Rule 59(e)). In certain instances, denial of a Rule 15(a) motion “may be

justified based upon a consideration” of several factors, including the futility of the amendment.

Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1, 955 A.2d 1082. We review a trial court’s

denial of a plaintiff’s motion to file an amended complaint for abuse of discretion. N. Sec. Ins.

Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 34, 184 Vt. 303, 965 A.2d 447.

¶ 19. Plaintiff fails to show an abuse of discretion here. The fact that plaintiff was an

account holder alone, without a showing that she placed her trust, confidence, and reliance in the

bank in connection with the procurement of notary services by her husband, does not suffice to

show a special relationship. Nor do the added allegations address how plaintiff’s account-holder

status relates to the notarial services that Cavka allegedly provided to her ex-husband. At most,

the new allegations suggest that TD Bank owed plaintiff certain contractual obligations due to her

status as an account holder. However, such allegations do not establish “a duty of care independent

of any contractual obligations.” Springfield Hydroelectric Co., 172 Vt. at 316, 779 A.2d at 71

(quotation and emphasis omitted); see also Walsh, 2015 VT 2, ¶ 31 n.2 (“[T]he tort duty, to be

actionable, must not be ‘interwoven’ with the contract.” (quotation omitted)). Plaintiff cannot

show that she relied on TD Bank to provide her with notary services because she admits that she

7
never procured notary services from the bank and she was not present when the allegedly forged

document was notarized.

¶ 20. Plaintiff thus fails to establish that she shared a special relationship with the bank

to oversee notarial services offered by any of its employees. See Shulman v. Concord Gen. Mut.

Ins. Co., 618 F. Supp. 3d 165, 175 (D. Vt. 2022) (holding that plaintiffs failed to sufficiently allege

“a special relationship of trust” with insurer where insurer had “made no contact with plaintiffs”).

Therefore, because plaintiff’s proposed amended complaint, like her original complaint, cannot

show that an exception to the economic-loss rule applies, it cannot withstand a motion to dismiss,

and amendment would therefore be futile. The trial court did not abuse its discretion in denying

plaintiff’s post-judgment motion to amend her complaint. See Vasseur v. State, 2021 VT 53, ¶¶ 7,

16, 215 Vt. 224, 260 A.3d 1126 (affirming denial of motion to amend complaint because amended

complaint would not have survived motion to dismiss).

Affirmed.

FOR THE COURT:

Chief Justice

8