Vermont Superior Court Filed 06/17/24

Lamoille UUnit

VERMONT SUPERIOR COURT

Lamoille Unit 154 Main Street Hyde Park VT 05655 802-888-3887 www.vermontjudiciary.org

CIVIL DIVISION

Case No. 24-CV-01416

Pine Hill Properties, LLC. v. Dee Spaulding et al ENTRY REGARDING MOTION

Title: Motion for Default

Judgment; Motion to Dismiss vs. Dee Spaulding; (Motion: 1; 2) Filer: Everett M. Secor; Jennifer E. Nelson

Filed Date: May 13, 2024; May 15, 2024

The motions are DENIED.

This is landlord/tenant matter concerning Plaintiff Pine Hill Properties' efforts to

terminate the tenancy of Defendant Spaulding. Plaintiff filed €a motion for default

judgment based

on Defendant's failure to file an answer and enter notice of appearance. Defendant has now filed

an answer, which although technically untimely, has not been unreasonably delayed. As Defendant

notes, the Court disfavors default

judgments where the opposing party has corrected its failure to

answer and where the matter can be resolved on the merits. Desjarlaisv. Gilman, 143 Vt. 154, 158 59

(1983). For these reasons, the motion for default

judgment

is Denied.

As to Defendant's motion to dismiss, it is premised on the fact that the notice to terminate

the tenancyreferred to dwelling unit located at 52 Lower Main Street West, Apartment #46,

instead ofApartment #33, at the same address. There is no disputethat Defendant received the

notice of termination, that Defendant onlyrents one dwelling unit from Plaintiff, and that Defendant did not reside or rent the other unit at #46. Additionally, there are some facts that

indicate that Defendant was aware of the fact that her tenancy was beingterminated and that the

reference to #46, rather than #3, was scrivenet's error.

Court will only grantthe motion if there are no facts or circumstances that would grant

plaintiff relief. Colby

v. Umbrella Inc., 2008 VT 20, 15. This is because the purpose of motion to

dismiss for failure to state claim is "to test the law of the claim, not the facts which supportit."

Brigham v. State of Vermont, 2005 VT 105, 11 (quoting

Powers v. Office ofChild Support, 173 Vt. 390,

395 (2002)). Courts rarely grant motions to dismiss for failure to state claim. Co/by, 2008 VT 20, at

Entry Regarding Motion Page of 24-CV-01416 Pine Hill Properties, LLC. v. Dee Spaulding

et al
Entry Regarding Motion Page 2 of 2

24-CV-01416 Pine Hill Properties, LLC. v. Dee J Spaulding et al

¶ 5; see also Kaplan v. Morgan Stanley & Co., Inc., 2009 VT 78, ¶ 7. Courts generally disfavor these 

motions. Bock v. Gold, 2008 VT 81, ¶ 4 (“Motions to dismiss for failure to state a claim are 

disfavored and should be rarely granted.”). For these reasons, a party seeking dismissal has a high 

burden to show that they are entitled to such an initial ruling. Bock, 2008 VT 81 at ¶ 4. 

In this case, Defendant’s motion is premised on the fact that the notice to terminate had the 

right address but the wrong apartment number. Plaintiff characterizes this error as a scrivener’s 

error and notes that there are facts that show Defendant was not confused by the wrong apartment 

number. There are a number of cases where courts have allowed proceedings despite an error when 

it is established that the error was harmless, was effectively a typo, and where the error did not sow 

substantial confusion. See State v. Cuomo, 2013 VT 101, ¶ 7 (discussing scrivener’s error in the 

context of the de facto officer doctrine). In Vermont, courts have long held that a landlord must 

have punctilious compliance with all statutory eviction procedures, but the Vermont Supreme Court 

has noted that this language must be balanced with both the facts of a case—whether the tenant 

received actual notice and suffered prejudice—and with the statutory framework. In re Soon Kwon, 

2011 VT 26, ¶¶ 14–16. 

In this case, there are disputed facts and an absence of facts. It appears that Tenant 

Spaulding received actual notice, but it is not clear if there was any prejudice. It is also not clear if 

there was an actual confusion or if the notice was understood for what it was intended, which as a 

notice for Defendant Spaulding to terminate her tenancy for the only dwelling unit she was 

occupying at the time. 

Based on this, dismissal of Plaintiff’s claims at this stage of the case would be inappropriate. 

The Court will allow this matter to proceed, and the motion to dismiss is Denied.

ORDER

The motion for default judgment and the motion to dismiss are Denied based on the 

contested facts and answer. The Court will schedule this matter for a pre-trial conference at its next 

available date to set for trial.

Electronically signed on 6/17/2024 2:08 PM pursuant to V.R.E.F. 9(d)

__________________________________ 

Daniel Richardson

Superior Court Judge