Johnson v. Sullivan

Vermont Superior Court
Filed 10/14/25
Rutland Unit

VERMONT SUPERIOR COURT
Rutland Unit

83 Center St

Rutland VT 05701

802-775-4394
www.vermontjudiciary.org

CIVIL DIVISION
Case No. 24-CV-00146

Timothy Johnson et al v. Jeremy Sullivan

RULING ON PLAINTIFFS’ MOTION IN LIMINE

On September 16, 2025, Plaintiffs filed a motion in limine “to preclude Defendant from arguing
that he is excused from breaching his contract with Plaintiffs because a third party caused the breach.”
For reasons that follow, the motion is denied.

“A motion in limine refers to “any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.’” Rosas v. Miri Gen.
Contracting Inc., 782 F. Supp. 3d 15, 18 (E.D.N.Y. 2025) (emphasis added; quoting Luce v. United
States, 469 U.S. 38, 40 n.2 (1984)). “The whole reason for a motion in limine is to resolve disputed
evidentiary issues before trial.” Billings v. Billings, 2011 VT 116, § 14, 190 Vt. 487, abrogated by
statute on other grounds as recognized in Noble v. Noble, 2020 VT 105, 213 Vt. 583; see Rosas, 782
F, Supp. 3d at 18 (“The purpose of a motion in limine is to allow the trial court to rule in advance of
trial on the admissibility and relevance of certain forecasted evidence.” (omitting quotation marks;
citing Luce, 469 U.S. at 40 n.2)). Notably, “the motion should be used, if used at all, as a rifle and not
as a shotgun,” and is “not to be used as a sweeping means of testing issues of law.” State v. Dubois,
150 Vt. 600, 602 (1988) (omitting internal quotation marks and citations). “Evidence should be
excluded on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds.” Rosas, 782 F. Supp. 3d at 18 (omitting quotation marks). Thus, “the denial of a motion in
limine is appropriate when the trial court can conceive of a set of circumstances that would make the
evidence admissible.” Dubois, 150 Vt. at 602. “Such a denial does not, of course, mean that the
evidence is admissible.” /d.; see State v. Lyddy, 2025 VT 1, § 17, 331 A.3d 1026 (same).

By its very terms, Plaintiffs’ motion is misdirected—at anticipated legal contentions or
argument by opposing counsel, rather than at expected evidence. To the extent Plaintiffs mean by their
motion to exclude any evidence that might support Defendant’s legal theory—the tort-law based
theory that Defendant cannot be held liable for breach of contract because the tree-cutting was done by
an independent third party—then the motion is akin to a shotgun rather than a rifle. Indeed, it appears
that Defendant’s case, as to his liability for breach of contract, will be—first and foremost—that the
alleged post-contract cutting never happened at all. In support of that factual position, Defendant will
testify that he told Mr. Conway to cease all new cutting (on or around the date of the contract).
Defendant’s testimony in that regard appears relevant, and certainly not “clearly inadmissible on all
potential grounds.” Rosas, supra. Thus, the Court will not order such testimony precluded in limine,
simply because it might also be considered supportive of or relevant to a tort-law theory that the Court
found to be inapplicable in the context of Defendant’s motion for summary judgment on the claim
against him for breach of contract.

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24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan
Moreover, arguments by counsel that do not conform with the evidence, or that are devised to
introduce facts to the jury that are not in evidence, are generally policed during trial by way of
objections from opposing counsel and court rulings sustaining those objections, if appropriate. The
court will not rule on a motion in limine in order to bar counsel from improper legal argumentation.
Further, legal argumentation by counsel during a jury trial is generally very limited. The Court, by its
final instructions to the jury, explains and declares the applicable law. Counsel may refer to those
instructions in their summations but are otherwise not free to get into legal argumentation during the
course of trial. For these additional reasons, the Court will not use a motion in limine as a vehicle to
pre-empt legal argumentation by counsel, which should be fairly limited to begin with.

The Court notes that the parties’ proposed jury instructions are due on November 7, 2025.
Given the apparent disagreement between the parties’ counsel as to the substance and scope of the
Court’s prior ruling on summary judgment and given the request for proposed instructions on matters
of law, the Court believes that it would be helpful to offer clarity as to the prior ruling.

In Count I of their Complaint, Plaintiffs asserted a claim for breach of contract. In moving for
summary judgment on that claim, Defendant argued, inter alia, that under “‘the general rule set forth
in the Restatement (Second) of Torts § 409 . . . the employer of an independent contractor is not liable
for physical harm caused to another by an act or omission of the contractor or his servants.’” Def.’s
Mot. for Summ. J. (filed Apr. 15, 2025), at 14 (quoting, with other quotation marks omitted, Fireman’s
Fund Ins. Co. v. Falco Constr. Corp., 493 F. Supp. 2d 143, 146 (D. Mass. 2007)). Defendants also
relied upon Kuligoski v. Rapoza, 2018 VT 14, 207 Vt. 43, for a similar tort-law principle, that when
suing a person in negligence for injuries or losses actually caused by the negligent conduct of another
(so-called “vicarious liability”), the plaintiff must prove the existence of an employer-employee
relationship between the two persons that warrants imposing liability on the “vicarious” person for the
other’s negligent conduct. See Def.’s Mot. at 14-15.

The Court rejected this line of argument as “inapposite,” since it expressly pertains to tort
actions involving injuries to persons or property caused by the tortious acts of an independent
contractor. The Court stands by its ruling. Plaintiffs’ claim for breach of contract is not for harms or
losses to any property, owned by the Plaintiffs, that were proximately caused by Defendant’s (or any
other person’s) tortious conduct. After all, Plaintiffs never became owners of the subject premises or
the trees, and they have never claimed that any of their property was lost or harmed by the negligent
acts of Defendant or any other person. Plaintiffs’ claim is that a contractual promise made by the
Defendant was broken, by his failure to give Plaintiffs’ possession of the premises at the time of
closing, including certain fixtures, which were defined to include the trees that were there at the time
of contracting.! That is the context in which to understand the Court’s prior ruling. Indeed, since it is
the burden of the moving party under Rule 56 to demonstrate that he is entitled to judgment as a matter
of law, the Court’s ruling should be understood to say that, by his briefing and citations to legal
authorities, his burden was not met. Defendant failed to convince the Court that under the applicable
law (the law of contracts), he was entitled to judgment.

So Ordered.

! To be clear, as explained already in the Court’s summary judgment ruling, the Plaintiffs’ theory is actually anticipatory
repudiation, which is form of breach of contract.

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24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan
Electronically Signed on: Monday, October 13, 2025 pursuant to V.R.E.F. 9(d).

ey
Susan A. McManus
Superior Court Judge

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24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan