Termont Superior Court Filed 08/30/24

Caledonia Unit

VERMONT SUPERIOR COURT

Caledonia Unit 1126 Main Street Suite

St. Johnsbury VT 05819 802-748-6600 www.vermontjudiciary.org

CIVIL DIVISION

Case No. 24-CV-01231

Dayami Garcia et al v. Allan Birch et al

ENTRY REGARDING MOTION

Title: Motion to Amend Complaint; Motion to Dismiss; Motion to Dismiss (Motion: 2; 4; 7) Filer: Brice Simon; Everett M. Secor; Kyle S. Clauss Filed Date: June 19, 2024; July 22, 2024; August 07, 2024

The motion is GRANTED IN PART and DENIED IN PART.

This is landlord tenant case that has been complicated byseveral preliminaryissues. After

reviewing

the filings, the Court finds that some of these issues are the responsibility of the parties,

and some are the result of prior parties. Presently, the Plaintiffs seek to advance claim of

ejectment

that Defendants oppose on variety of procedural bases.

The Court recognizesthat part of the difficultyin this case arises from the fact that Defendants initially

formed rental relationship with Plaintiffs' predecessor

in title, Frederick

Schwagg, who owned the buildings until his passing

last year. Mr. Schwagg's passing appearsto

have come at the end of

long

illness during which time he did not or could not maintain his

propetties and provide

the oversight and managementthat would normallyfollow in landlord

tenant relationship. Plaintiffs have allegedthat part of this lack of maintenance is due to Defendants who they

claim blocked efforts to provide maintenance.

The propertyis presently subjectto litigation with the Town of Burke concerning zoning,

fire safety, and habitabilityissues. The partiesto that

litigation have entered stipulated judgment

that requiresthe Plaintiffs in the present case to remove all tenants from the premiseto perform

necessary

fire safety upgrades and to bringthe propertyinto zoning compliance.

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24-CV-01231 Dayami Garcia et al v. Allan Birch et al

In their motion to dismiss, Defendants raise a number of issues, but the Court will focus on 

the primary relevant issue, which is what notices of termination are presently active, and whether the 

complaint may be amended to reflect any new cause of action that has arisen. 

The first notices of termination, which the Plaintiffs taped to Defendants’ doors on January 

30, 2024 are facially invalid. They do not cite to a proper provision under 9 V.S.A. § 4467 and 

appear to impose a re-set to the rental relationship by virtue of Mr. Schwagg’s passing. The notices 

do not cite to a date certain, and they appear to have been taped to the door of the units, which is 

not a method of delivery allowed under the definition of “actual notice” as that term is defined in 9 

V.S.A. § 4451. For these reasons, these initial notices are invalid, and cannot sustain the present 

action. 

The second set of notices were delivered from Plaintiffs’ counsel in a letter dated March 29, 

2024. In that letter, addressed to both Defendants, Plaintiffs indicate that the lease is being 

terminated for three reasons: (1) for criminal activity under 9 V.S.A. § 4467(b)(2); (2) for violations 

of the rental agreement or the terms of 9 V.S.A. § 4467(b)(1); and (3) for no cause under the 90-day 

notice provisions of 9 V.S.A. § 4467(c)(1)(B). 

To the extent that this notice seeks to terminate Defendants’ tenancy under either 9 V.S.A. § 

4467(b)(1) or (2), the notices are invalid. They do not give any indication what criminal activity or 

what breaches of the lease have occurred or the basis for the termination. The notice of termination 

cannot leave tenants in the dark and guessing at the legal significance of the termination. Andrus v. 

Dunbar, 2005 VT 48, ¶ 13. 

This does not mean that landlord has to spell out the nature of each and every violation or 

cite the publicly available statutes at length, but it does mean that they must provide some notice to 

allow tenant to correct the issue or challenge it if there has been an error. In this respect, the Court 

would analogize the need for clarity under Section 4467(b) to the requirements for pleadings that 

require only notice of the allegations. See Huntington Ingalls Industries, Inc. v. Ace American Insurance Co., 

2022 VT 45, ¶¶ 40 (complaints need only make a “bare bones statement that merely provides the 

defendant with notice of the claims against it”); see also Bock v. Gold, 2008 VT 81, ¶ 4 (mem.) 

(holding that notice pleading standards are exceedingly low). A notice of termination under Sections 

4467(b)(1) and (2) should not carry a higher standard than what the eventual pleading will require, 
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24-CV-01231 Dayami Garcia et al v. Allan Birch et al

but at the same time, it would frustrate the purpose of the statute to merely state that the lease was 

terminating for these reasons without providing some notice of what the violations are alleged to be. 

This leaves only the notice of termination for no cause under 9 V.S.A. § 4467(c)(1)(B). 

Termination for no cause is self-explanatory and needs no special notice, unlike Section 4467(b). 

The Court finds no violation by delivering the notice of no cause to the Defendants jointly as both 

began their tenancy at the same time, and the notice is sufficient to show that both are being 

terminated jointly. As a no cause eviction, there are no individual standards or behaviors to notice, 

and the Court is satisfied that this joint notice is effective and sufficient.

Defendants object to the way they received the notice of termination because it was included 

in a packet of materials that were filed with the inception of the present action. While this may not 

be a best practice, it does technically comply with actual notice under 9 V.S.A. § 4451 in that it put 

the notice into the hands of the Defendants in a timely manner. While Defendants allege that this 

could have led to potential confusion, there is no evidence that any actual confusion ensued, or that 

the document was not received. For the limited purposes of 9 V.S.A. §§ 4451and 4467, this notice is 

sufficient to deliver the notice of termination for no cause. 

This brings the Court to the question of whether it can permit the amendment of the 

complaint under V.R.C.P. 15(a), or if Defendants must re-file the complaint on or before September 

13, 2024 when the 60-day window under 9 V.S.A. § 4467(k). The Court finds that Defendants’ 

arguments on this front are valid in that the original complaint appears to have been facially invalid 

given that at the time it was filed, the present no cause termination had not matured, and the 

underlying bases from the January 30, 2024 notices were so invalid as to render the original 

complaint invalid from the moment it was filed. 

More importantly, the present amended complaint was filed and drafted before the notice 

for termination for no cause had matured. In their rush to the Courthouse, Plaintiffs have failed to 

allow the process to play out. While the Court can imagine situations where Rule 15 would allow 

amendment, particularly if one basis for termination, such as non-payment of rent, gave rise to a 

cause of action, and plaintiff sought to later join a no cause termination that did not mature at the 

time of filing. This is because the landlord is always juggling multiple notices with the 60-day time 

limits of Section 4467(k). In such a case, the first cause of action is valid and sustains the cause of 

action while the amendment simply adds the separate, additional cause. 
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24-CV-01231 Dayami Garcia et al v. Allan Birch et al

The present case is more disjointed. Each of the preceding causes of action have been 

found wanting, and Plaintiffs were effectively trying to revive a walking dead-man by introducing 

separate and new re-animating claims. While Rule 15 does allow liberal amendments, it must be 

read within the context of the statutes behind ejectment and the supporting case law. Under 9 

V.S.A. § 4468, a landlord’s right to seek ejectment under 12 V.S.A. § 4853 does not arise until the 

tenancy is terminated. In this case, where the prior terminations were facially invalid, the Court will 

not allow the artificial resuscitation sought by Plaintiffs. Andrus v. Dunbar, 2005 VT 48, ¶ 15 

(“Because the tenancy had not been terminated on the date that the landlord brought the ejectment 

action, the trial court should have entered judgment for tenant.”).

ORDER

For these reasons, Defendant’s Motion to Dismiss is Granted, and Plaintiff’s Motion to 

Amend is Denied as futile. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4 (noting that a motion to amend 

may be denied based on the futility of the amendment). 

In making this ruling, the Court has clarified that its review of the notice of termination for 

no cause appears to be sufficient to support new and separate cause of action, and nothing in this 

decision prevents Plaintiffs from filing a new and revised complaint based on this notice of 

termination. All other notices are deemed facially invalid under 9 V.S.A. §§ 4451 and 4467. 

Plaintiffs are free to file a new complaint based on their notice of no cause termination.

Electronically signed on 8/30/2024 11:17 AM pursuant to V.R.E.F. 9(d)

__________________________________ 

Daniel Richardson

Superior Court Judge