Princess Montpelier v. Jay Gil

VERMONT SUPREME COURT Case No. 24-AP-035
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JULY TERM, 2024

Princess Montpelier* v. Jay Gil et al. } APPEALED FROM:
} Superior Court, Rutland Unit, Civil Division
} CASE NO. 23-CV-02692
Trial Judge: Alexander N. Burke

In the above-entitled cause, the Clerk will enter:

Plaintiff appeals from a civil division order granting defendants’ motion to dismiss her
complaint. We affirm.

In June 2023, plaintiff filed a pro se complaint against a Days Inn, its owners, and its
general manager. She listed claims of infliction of physical pain and mental and emotional
distress, conspiracy to defraud her character, vicarious liability, and unlawful retaliatory action
based on the following factual allegations.

Plaintiff planned to stay at a Days Inn in Rutland using a voucher provided by the
Economic Services Division (ESD) of the Department for Children and Families. However,
when she attempted to check in on June 5, 2023, employees told her that the hotel was no longer
participating in ESD’s voucher program, there were no rooms available, and she had been placed
on the “do not rent” list following an earlier stay in December 2022.1 As a result, plaintiff spent
the night on a bench near the transit center. She contacted an ESD employee the next morning
and was able to stay in a room at the Days Inn that night. However, on June 7, the ESD
employee told her she had to leave the Days Inn because the hotel staff had complained.

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On the day of oral argument, plaintiff moved for permission to supplement the record
on appeal with a document she describes as relevant to the hotel’s participation in the voucher
program. The record on appeal is limited to “the documents, data, and exhibits filed . . . in the
superior court.” V.R.A.P. 10(a)(1). Because the proffered document was not filed in the superior
court, we cannot consider it. See Hoover v. Hoover, 171 Vt. 256, 258 (2000). In addition, it is
not clear what relief, if any, plaintiff seeks in connection with a photograph also attached to her
motion but not addressed therein. See V.R.A.P. 27(a)(2)(A) (“A motion must state with
particularity the grounds for the motion and the order or relief sought.”). The motion is denied.
Defendants initially proceeded pro se and filed identical motions summarily requesting
that the court dismiss plaintiff’s complaint as “baseless and without merit.” Plaintiff
subsequently filed a motion to quash defendants’ motions to dismiss and a motion for summary
judgment.

The civil division scheduled a hearing on these and several other pending motions, and an
attorney entered an appearance for defendants. After the October 23 hearing, the court issued an
order indicating that plaintiff was notified of the hearing and failed to appear, defendants planned
to renew their motions to dismiss in an appropriate format, and the court had issued on-the-
record rulings on ten pending motions. Plaintiff’s motion for summary judgment was denied and
her motion to quash was held moot.

Defendants filed their anticipated motion to dismiss on November 20. On December 23,
plaintiff moved for a thirty-day extension of time to respond based on ongoing medical
appointments. She also noted that she had not been well enough to attend the October 23 hearing
after a fall earlier that month and did not learn of the court’s rulings until November 27.
Defendants opposed the motion, arguing that it was filed after the thirty-day response deadline
elapsed. See V.R.C.P. 7(b)(4) (requiring that memorandum in opposition to dispositive motion
be filed within thirty days of service). The civil division issued an order concluding that plaintiff
sufficiently demonstrated excusable neglect but explaining that an extension of over six months
was too lengthy. See V.R.C.P. 6(b)(1)(B) (providing that court may extend time after expiration
if party failed to act due to excusable neglect). It therefore moved the response deadline to
March 1, 2024.

Defendants filed a motion to reconsider, suggesting that the court may have misconstrued
plaintiff’s motion as seeking a continuance of six months and noting that she only requested a
thirty-day extension of time. The court granted defendants’ motion to reconsider and provided
that plaintiff’s opposition was due on January 23, 2024.

Plaintiff then filed a motion to correct the record in which she confirmed that she
intended to request a thirty-day extension. She also filed a motion titled “Motion to Reduce
Time to Answer Motion to Dismiss . . . to January 26th, 2024.” However, the body of the latter
motion did not request a change to the response deadline, but instead suggested that defendants’
attorney should call plaintiff and referenced a mantra of the American Red Cross. The court
denied the motion to reduce time, indicating that it did not state with particularity the relief
requested, supporting law, or facts as required under Vermont Rule of Civil Procedure 7(b)(1).
The court also denied plaintiff’s motion to correct the record and reiterated that plaintiff’s
response was now due on January 23, as set forth in the order granting defendants’ motion to
reconsider.

On January 24, plaintiff filed a collection of documents that appeared to be medical
records, accompanied by a communication titled “Open letter to the Court & Counselor for
Defendants.” Therein, she indicated that she had been ill and stated “January 26th, 2024, was the
stipulated goal. However I pray it, i.e. my pleading . . . will be well received by January 31st,
2024.”

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The following day, the court granted defendants’ motion to dismiss, concluding that
plaintiff effectively waived her claims by failing to oppose the motion before the January 23
deadline. It also noted that plaintiff’s January 24 reply to a separate filing by defendants
indicated that she had the ability to respond to the motion to dismiss by January 23 but chose not
to do so.

Plaintiff filed her opposition to the motion to dismiss and a notice of appeal on January
31.

On appeal, plaintiff argues that the civil division did not rule on her August 17 motions
for summary judgment and to quash defendants’ original motions to dismiss “in a timely
manner . . . if at all.” As noted above, the court ruled on both motions on the record at the
October 23 hearing but did not repeat the grounds for those decisions in its written order. As a
result, a transcript of the hearing is necessary for informed appellate review of any related
contentions. Because plaintiff did not order a transcript, she has waived the right to raise these
claims on appeal. V.R.A.P. 10(b)(1) (“By failing to order a transcript, the appellant waives the
right to raise any issue for which a transcript is necessary for informed appellate review.”).

Our review is therefore limited to plaintiff’s argument that the court erred in granting
defendants’ renewed motion to dismiss. See Girouard v. Hofmann, 2009 VT 66, ¶ 6, 186 Vt.
153 (“We review a trial court’s disposition of a motion to dismiss de novo.”). As the trial court
explained, where a party has an opportunity and fails to respond to a motion to dismiss, the
“failure to oppose the motion effectively waive[s] the claims.” Pharmacists Mut. Ins. Co. v.
Meyer, 2010 VT 10, ¶ 18, 187 Vt. 323 (concluding that appellant waived arguments that trial
court erred in dismissing his counterclaims by failing to file opposition to motion to dismiss
below).

Plaintiff argues that she did not have an opportunity to respond because the March 1
response deadline remained in place at the time the court granted the motion to dismiss. Though
plaintiff suggests that the court’s ruling may have resulted from a new judge’s lack of familiarity
with the file, her assertion that the prior judge did not modify the initial order is not supported by
the record. In granting defendants’ motion to reconsider that order, the court replaced the March
1 deadline with the January 23 deadline. Plaintiff also contends that the court erred in
concluding that she had the ability to file her opposition to the motion to dismiss by January 23
but chose not to do so. She now argues that she did not have time to file her opposition prior to
the deadline because she was drafting responses to three other motions filed by defendants.
However, plaintiff never moved for an extension of time on this basis.2 As a result, she has not

2
Plaintiff does note that she filed a motion requesting an extension of time to January
31. We construe this as a reference to her open letter of January 24. However, plaintiff does not
explain how this is relevant to her argument on appeal. To the extent plaintiff suggests the court
should have treated her letter as a motion to extend time, we disagree. “[A]lthough pro se
litigants receive some leeway from the courts, they are still bound by the ordinary rules of civil
procedure.” Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219 (quotation omitted). Under those
rules, “[a]n application to the court for an order shall be by motion which . . . shall set forth the
relief or order sought.” V.R.C.P. 7(b)(1). Plaintiff’s letter did not request that the court order an

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preserved this argument for our review. See In re White, 172 Vt. 335, 343 (2001) (providing that
issues are preserved for appellate review only where raised with specificity and clarity in trial
court).

Plaintiff has not identified any basis to disturb the civil division’s order.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

extension of the deadline. It was also filed after the deadline expired and designated as an open
letter to both the court and defense counsel, despite plaintiff’s previous request for an extension
of the same deadline by motion. The court was not obligated to construe it as a motion to extend
time—or as an indication that plaintiff did not have an opportunity to respond to the motion to
dismiss where she filed a motion titled “Plaintiff’s Response to Defendants’ Annoyance Over a
Minor Skirmish” on the same date.

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