McLean v. Mannion

McLean v. Mannion (2003-159); 177 Vt. 487; 857 A.2d 766

2004 VT 48

[Filed 26-May-2004]
[Motion for Reargument Denied 17-Jun-1004]


                                 ENTRY ORDER

                                 2004 VT 48

                      SUPREME COURT DOCKET NO. 2003-159

                              APRIL TERM, 2004

  Barbara McLean	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Lamoille Superior Court
                                       }	
  Thomas W. Mannion, Dianne M. Mannion }
  and Treadle Bears of Vermont, Inc.   }	DOCKET NO. 138-7-02 Lecv

                                                Trial Judge: Edward J. Cashman

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

       ¶  1.  Plaintiff, Barbara McLean, appeals the superior court's
  dismissal of her complaint against her former employers, Treadle Bears of
  Vermont, Inc., and its owners, alleging that she suffered a workplace
  injury but defendants failed to maintain workers' compensation insurance to
  cover it.  The court dismissed the complaint on the grounds that 1) because
  plaintiff's case is still pending before the Vermont Department of Labor
  and Industry (VTLI), 21 V.S.A.  § 670, allowing workers' compensation
  appeals to the superior court, is inapplicable; 2) 21 V.S.A. § 622 operates
  to prevent an employee's civil suit, arising out of work injuries, against
  his or her employer once the employee seeks workers' compensation; 3) 21
  V.S.A. § 618(b) and (d) do not, under the circumstances, provide plaintiff
  with the opportunity to pursue simultaneous actions with both VTLI and the
  superior court.  We do not decide the whether the court's reasoning was
  correct, and therefore remand for further factual development.  Plaintiff
  also appeals the court's award of attorney's fees for the cost of defending
  against plaintiff's V.R.C.P. 11 motion.  We affirm that award.

       ¶  2.  Our primary concern with the present case as it has come to
  us is the apparently unorthodox development of the record.  The issues
  suggested by the trial court's decision are unclear and could arise with
  respect to a significant number of work injuries in this state.  See
  generally Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001)
  (discussing how a range of conditions and factual circumstances, including
  the status of VTLI hearings, may affect the applicability of § 622). 
  Thus, we are reluctant to decide these issues on an inadequate record.
   
       ¶  3.  The superior court decided the case based on defendants'
  motion to dismiss filed under V.R.C.P. 12(d).  The record before it
  consisted of various documents filed with VTLI as attached to the parties'
  memoranda of law.  In arguing the case to this Court, the parties added
  still more VTLI documents as part of a printed case or attached to a brief. 
  It is clear that where "matters outside the pleadings are presented to and
  not excluded by the court," the motion must be treated as one for summary
  judgment and the procedures in V.R.C.P. 56 followed.  V.R.C.P. 12(b); see
  Condosta v. Condosta, 139 Vt. 545, 546-47, 431 A.2d 494, 495 (1981)
  (citation omitted) ("[the rules provide that] . . . if the trial court were
  to consider matters outside the pleadings in deciding the motion [to
  dismiss], [defendant] was entitled to have the motion treated as one for
  summary judgment . . . . The judgment and proceedings in a case other than
  that on trial, even between the same parties, is [sic] not to be taken
  notice of by the court of its own motion.").  This rule was not followed
  here.  Thus, we must reverse the dismissal of plaintiff's complaint and
  remand for development of a proper record.

       ¶  4.  We affirm the trial court's order that plaintiff's attorney
  be assessed the attorneys' fees incurred by defendants in defending against
  plaintiff's Rule 11 motion.  The Court may require the moving party to pay
  the attorney's fees of a party who must defend against a groundless Rule 11
  motion.  See Reporter's Notes, 1996 Amendment, V.R.C.P. 11.  While
  defendants' motion to dismiss may not prevail, it was clearly based on a
  nonfrivolous interpretation of existing law, and there was no showing that
  it was advanced for an improper purpose.  See V.R.C.P. 11(b)(1), (2).

       The superior court's decision to award defendant $1305 in attorney's
  fees incurred defending plaintiff's Rule 11 motion is affirmed; the
  decision to dismiss plaintiff's complaint is reversed and remanded. 


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice