hughes v marsh

7ermont 	Superior 	Court
Filed 	09/24/26
Windsor 	mit
VERMONT 	SUPERIOR 	COURT 	CIVIL 	DIVISION
Windsor 	Unit 	Case 	No. 	24-CV-05314
12 	The 	Green
Woodstock 	VT 	05091
802-457-2121
www.vermontjudiciary.org
John 	Hughes 	Sr. 	vs 	Robert Marsh, 	et 	al
DECISION 	ON 	MOTION
Defendants 	Robert 	Marsh 	and 	Kari 	Marsh 	filed 	a 	motion 	requesting 	a 	court 	trial 	on 	their
remaining 	counterclaim 	in 	dispute 	with 	Plaintiff, 	John 	Hughes, 	Sr. 	The 	Court 	issued 	an 	entry
order 	yesterday 	requesting 	that 	counsel 	for 	Mr. 	Hughes, 	Sr. 	file 	their 	response 	by 	noon 	today 	as
the 	Court 	would 	otherwise 	need 	to 	mail 	parking 	passes 	to 	the jury 	pool 	that 	was 	summoned 	to
appear 	for jury 	draw 	on 	October 	8". 	The 	Court 	did 	not 	receive 	a 	response 	from 	Mr. 	Hughes, 	Sr.
Nevertheless, 	the 	Court 	has 	engaged 	in 	the 	legal 	analysis 	of the 	issue 	raised 	here 	as 	if the 	motion
was 	opposed 	by 	Mr. 	Hughes, 	Sr.
To 	ensure 	the 	right 	to 	a 	jury 	trial, 	Vermont 	Rule 	of Civil 	Procedure 	38 	provides:
Any 	party 	may 	demand 	a 	trial 	by 	jury 	of any issue 	triable 	of right 	by 	a 	jury 	by 	(1) 	serving
upon 	the 	other 	parties 	a 	demand 	therefor 	in 	writing 	at 	any 	time 	after 	the 	commencement
of the 	action 	and 	not 	later 	than 	14 	days 	after 	the 	service 	of the 	last 	pleading 	directed 	to
such 	issue, 	and 	(2) 	filing 	the 	demand 	as 	required 	by 	Rule 	5(d). 	Such 	demand 	may 	be
indorsed 	upon 	a 	pleading 	of the 	party.
Vt. 	R. 	Civ. 	P. 	38(b).
A 	counterclaim 	should 	also 	include 	a 	demand 	for 	a 	jury 	trial 	no 	later 	than 	14 	days 	after 	the
service 	of pleading 	related 	to 	the 	issue 	raised 	on 	the 	counterclaim. 	Likewise, 	if a 	party 	fails 	to
"serve 	and 	file 	raa 	demand 	as 	required 	by 	this 	rule," 	the 	failure 	constitutes 	as 	a 	waiver 	by 	the 	party
of trial 	by 	jury. 	Vt. 	R. 	Civ. 	P. 	38(d).
The 	Vermont 	Supreme 	Court 	has 	consistently 	enforced 	the 	waiver 	provision 	throughout
its 	jurisprudence. 	See 	My 	Sister's 	Place 	v. 	City 	ofBurlington, 	139 	Vt. 	602, 	433 	A.2d 	275
(holding 	that 	the 	trial 	court 	did 	not 	err 	by 	refusing 	to 	grant 	request 	for 	trial 	by 	jury 	after 	amended
complaint was 	filed); 	Bloomer 	v. 	Gibson, 	180 	Vt. 	397, 	912 	A.2d 	424 	(holding 	that 	amended
complaint 	did 	not 	revive 	right 	to 	a jury 	trial); 	Wells 	Fargo 	Bank, 	N.A. 	v. 	Ndibalema, 	2021 	WL
3020740 	(while 	party 	demanded 	a jury 	trial 	but 	participated 	fully 	at 	trial 	and 	did 	not 	object 	to 	a
lack 	ofjury).

Vermont case law consistently outlines that an amended complaint with a jury demand
after a defendant’s answer that does not include a demand or original complaint lacking a jury
demand is not sufficient to uphold the right to a jury trial. My Sister’s Place v. City of
Burlington, 139 Vt. 602, 433 A.2d 275; Bloomer v. Gibson, 180 Vt. 397, 912 A.2d 424.
Here, neither party made a written demand for a jury trial on the Defendants’
counterclaim for breach of contract involving a prior residential lease agreement between the
parties. Although the Plaintiff, Mr. Hughes, Sr., and Defendants, Robert Marsh and Kari Marsh,
both demanded in writing a jury trial on the negligence claim, their previous demand on a
dismissed claim does not survive and extend to the unresolved counterclaim.
The Vermont Supreme Court did address the right to a jury trial on a counterclaim in the
foreclosure proceeding realm. Merchants Bank v. Thibodeau, 143 Vt. 132, 135 (1983). There, the
Supreme Court held that the trial court erred in granting a jury trial on a counterclaim. Id.
“…[c]ounterclaims which, independently brought, would be triable by jury as a matter of right
shall be tried by a jury, if requested. This holding is consistent with the general rule that the
right to a jury trial is dependent upon the relief requested, and when the request is for equitable
relief no such right exists.” Id. Both Plaintiff and Defendants have a right to a jury trial on the
counterclaim. However, neither party requested a jury trial in writing consistent with V.R.C.P.
38(b) for the counterclaim and as such, their right to a jury trial is waived.
The motion is Granted.
The Court will proceed with a court trial commencing on October 13th at 9 a.m. The
Court will use the remaining three days for the court trial on October 14th, the morning of
October 15th and October 16th as necessary to complete the evidence, and if appropriate, issue its
findings and decision on the record.
The jury draw for October 8th is canceled.
Dated September 23, 2026.