Boehm v. Mulligan

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-02495
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Matthais Boehm et al v. Phillip Mulligan et al

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 5)
Filer: Elizabeth A. Willhite
Filed Date: December 04, 2025

The motion is DENIED.

Decision on Defendants’ Motion to Dismiss

Plaintiffs Matthais Boehm and Ulrike Von Loeper claim that they rented a residential
property in Chelsea, Vermont from Defendants Phillip Mulligan and Susan Morse. They claim
that when they traveled to Germany during the tenancy, Defendants illegally evicted them in
violation of 9 V.S.A. § 4463 and reneged on an agreement to sell the home to them in violation
of the Consumer Protection Act, 9 V.S.A. §§ 2451–2494z, somehow resulting in the destruction
of their personal property. They seek monetary relief only. Defendants seek dismissal, arguing
that venue is improper in the Washington Unit because the rented property is located within the
Orange Unit.

The venue issue has a somewhat odd history in this case. After filing suit in this unit,
Plaintiffs filed a motion requesting that the court “transfer” venue to the Orange Unit on an
interlocutory basis. The court noted the lack of statutory authority to do so in these
circumstances and asked whether there was any reason that the case should not be dismissed—
obviously, though implicitly, in service of Plaintiffs’ expressed desire to pursue the case in the
Orange, rather than Washington, Unit. Plaintiffs, in response, filed a memorandum objecting to
dismissal on improper venue grounds and arguing in support of the appropriateness of venue in
Washington under 12 V.S.A. § 402 and Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78. In response
to that filing, the Court said in a July 10, 2025, entry: “The Court is unsure of the purpose of the
filing. The instant matter is docketed and remains pending in this County [Unit]. The only
action taken by the Court was to deny [an interlocutory transfer] of venue.”
With the venue issue ostensibly resolved, one might have thought that would have been
the last of it. Instead, Defendants then filed a Rule 12(b)(3) motion to dismiss for lack of venue,
arguing that the only appropriate venue is Orange because that is where the subject property is.1
This prompted Plaintiffs to again argue that venue is appropriate in Washington under 12 V.S.A.
§ 402 and Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78.

To put this matter to rest, Venue is appropriate in this court under Bergeron, as Plaintiffs
now have briefed twice. It is unclear why this issue has become the raison d’etre for the parties
or the focus of the present litigation, and Defendants offer no new basis to support or justify a
different outcome.

The general venue statute states that: “An action before a Superior Court shall be brought
in the unit in which one of the parties resides, if either resides in the State; otherwise, on motion,
the complaint shall be dismissed. If neither party resides in the State, the action may be brought
in any unit. Actions concerning real estate shall be brought in the unit in which the lands, or
some part thereof, lie.” 12 V.S.A. § 402(a). At the time suit was filed (and now so far as the
court is aware), none of the parties resided in Vermont. Plaintiffs reside in Germany; Defendants
reside in New Hampshire. Plaintiffs thus could have filed suit in any unit of the civil division
unless this was an action “concerning real estate,” in which case it would have to have been filed
in the Orange Unit.

But under Bergeron, this case, which seeks only money and not title, is not one
“concerning real estate.” As the Bergeron Court explained:

[W]e have construed § 402(a) narrowly to place venue in the county where the
land is located only in actions to “establish or to settle title to real estate.” Where
no party disputes title, real property actions—including those for ejectment—may
properly be brought in the county where either party resides. Therefore, unless an
action requires the court to directly establish, quiet, attach, transfer or bestow title
to real property, the “concerning real estate” language of § 402(a) does not apply.

Bergeron, 2003 VT 89, ¶ 11; see also Craddock v. Heffermehl, No. 2018-126, 2018 WL
5785456, *4 n.2 (Vt. Nov. 2, 2018) (unpublished mem.) (“We have construed the restrictive

1 The motion also mentions a lack of personal jurisdiction but says nothing more about the matter. This appears to
be an oblique reference to Defendants’ argument that they have not yet been properly served. Otherwise, venue and
personal jurisdiction are separate concepts. See 14D Wright & Miller, Fed. Prac. & Proc. Juris. § 3801 (4th ed.).
The court does not understand Defendants’ motion to raise any issue of personal jurisdiction.
venue requirement concerning real property in § 402(a) to apply only to actions establishing or
settling title in the subject property.”); Birchwood Land Co., Inc. v. Krizan, No. 61-10-13 Gicv,
2014 WL 4162881, *1 (Feb. 13, 2014 Vt. Super. Ct.) (“when ‘no party disputes title,’ then the
normal [venue provision] applies”).

There is no title dispute in this case. Plaintiffs, based on their and Defendants’ out-of-
state residence were free to file in any unit.

Order

For the foregoing reasons, Defendants’ motion to dismiss is Denied.

Electronically signed on 1/28/2026 11:49 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge