 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Sweet v. Roy4/26/2002
in response to that order.
On the first day of trial, January 25, 1999, defendants asked the court to dismiss the trust as a party defendant on the ground that no separate amended complaint had been filed once the court granted plaintiff leave to amend. The trial court refused to do so. On appeal, defendants argue that a motion is not itself a pleading, that once a motion to amend a complaint is granted an entire new amended complaint must be filed, and that because plaintiff did not do so the court erred in refusing to dismiss the trust as a defendant.
The exact nature of the trust's claim of error is unclear. It has not claimed that there was no jurisdiction over it because no process was served on it pursuant to V.R.C.P. 4, apparently because it recognizes that prior to the amendment it had asserted counterclaims against plaintiff without formally entering the case as a party. Instead, it argues that a motion to amend must be followed by an amended complaint, but acknowledges such a filing may be unnecessary if the moving party attaches the proposed amendment to the complaint to the motion. Thus, its claim of error apparently reduces to an assertion that plaintiff had to attach all pages of the complaint to her motion, or had to serve separately the entire complaint, even though none of the unattached and unserved pages were amended. While we agree that the court could have insisted that plaintiff file and serve a full amended complaint, or given the trust more time to answer, see Carter v. Church, 791 F. Supp. 297, 298 (M.D. Ga. 1992), the trust seeks reversal of the judgment based on a technical rule that elevates form over substance. See North Georgia Elec. Membership Corp. v. City of Calhoun, 989 F.2d 429, 432 (11th Cir. 1993). Such a rule would be inconsistent with our policy that amendments to the pleadings are to be freely given where there is no prejudice to the opposing party. See Desrochers v. Perrault, 148 Vt. 491, 493, 535 A.2d 334, 336 (1987); Reporter's Notes to V.R.C.P. 15. We reject the trust's claim.
II.
We turn now to three arguments, which if accepted, would require a new trial on plaintiff's claim or on one of the counterclaims: (1) the court erred in ruling that, as a matter of law, the trust was responsible for the conduct of Leon Roy; (2) the court erred in admitting evidence of prior bad acts; and (3) the court erred in excluding evidence of threats made to the Roys by plaintiff's agent.
A.
The first ruling occurred following the close of evidence in response to defendants' argument that the jury would have to find agency and vicarious responsibility to hold the trust liable for the acts of either Leon or Marcien Roy. The court ruled that agency was present as a matter of law. Defendants further preserved their position by an objection following the charge to the jury.
The nucleus of defendants' argument is that plaintiff had to prove that Leon Roy's acts were taken within the scope of his employment, Poplaski v. Lamphere, 152 Vt. 251, 257, 565 A.2d 1326, 1330 (1989), and that question should have been put to the jury. Defendants particularly rely upon our recent explanation of this element in Brueckner v. Norwich University, 169 Vt. 118, 123, 730 A.2d 1086, 1091 (1999):
To be within the scope of employment, conduct must be of the same general nature as, or incidental to, the authorized conduct. See Restatement (Second) of Agency § 229(l) (1958). Conduct of the servant falls within the scope of employment if: (a) it is of the kind the servant is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpos
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Vermont DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|