Adriana Cunha-Salomon v. Williamson Group, LLC D/B/A Williamson Group Sotheby's International Realty

VERMONT SUPREME COURT Case No. 24-AP-309
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

MAY TERM, 2025

Adriana Cunha-Salomon et al.* v. } APPEALED FROM:
Williamson Group, LLC d/b/a Williamson }
Group Sotheby’s International Realty }
} Superior Court, Windsor Unit, Civil Division
} CASE NO. 24-CV-00631
Trial Judge: H. Dickson Corbett

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

Plaintiffs1 appeal the dismissal of their complaint for failure to timely serve defendant.
We affirm.

The record contains the following facts. Plaintiffs purchased property in Barnard,
Vermont on February 15, 2021. Plaintiffs did not have a real estate broker or agent, but were
represented by counsel at the closing. Defendant was the listing agent for the seller. Several
months after purchase, plaintiffs discovered that a neighbor held an easement across the
property. On February 14, 2024, plaintiffs, representing themselves, filed this civil action
against defendant, alleging invasion of privacy and negligent infliction of emotional distress.
Plaintiffs sent a copy of the complaint and summons along with other documents to defendant in
February 2024. An accompanying letter requested that defendant waive service within thirty
days and indicated that if defendant did not, plaintiffs would “proceed to have [defendant] served
by a duly authorized sheriff or constable.” In a March 21, 2024 letter, defendant’s counsel
responded to plaintiffs and directed plaintiffs’ attention to the pre-suit mediation requirement in
their purchase-and-sale agreement, requesting that plaintiffs dismiss the lawsuit and pursue
mediation. Defendant did not file anything into the civil suit and plaintiffs did not dismiss the
suit. The parties engaged in mediation, but it was unsuccessful.

On June 11, 2024, after there had been no action in the civil case, the court sent plaintiffs
a warning of possible dismissal advising them that the court had not yet received proof that

1
The suit was filed by plaintiffs Adriana Cunha-Salomon and Gabriel Evensen. The
complaint alleged that plaintiff Evensen was the named purchaser of the property and plaintiff
Cunha-Salomon paid for the property. On appeal, defendant has not challenged the inclusion of
either party or alleged that they have different rights or interests and therefore we refer to them
collectively as plaintiffs.
plaintiffs had served defendant, and the case would be dismissed for lack of progress if they did
not file proof of service within thirty days. On June 26, 2024, plaintiffs filed a document with
the court, labeled “Motion for Instructions.” Plaintiffs requested that the court accept
defendant’s letter of March 21, 2024, as proof of service or give plaintiffs an additional thirty
days to serve defendant through the sheriff’s department.

On July 11, 2024, defendant moved to dismiss for lack of service. Defendant alleged that
plaintiffs had not served defendant within sixty days of filing the complaint and that its letter to
plaintiffs did not amount to proof of service because defendant did not waive service, and
plaintiffs did not demonstrate personal service of the summons and complaint as required by the
civil rules. On July 12, 2024, the sheriff effected personal service on defendant, and proof of
service was later filed with the court. Defendant filed a supplemental motion to dismiss, arguing
that even though service had been completed, it was untimely, and the case should be dismissed
with prejudice.

The court granted the motion in part, dismissing the case without prejudice. The court
found that plaintiffs served the summons and complaint on defendant 149 days after the
complaint was filed, and this untimely service entitled defendant to dismissal. The court
declined to extend time for service, concluding that plaintiffs had not shown excusable neglect or
good cause because the delay in service was due to matters wholly within plaintiffs’ control,
including the delay to complete mediation. The court also concluded that equitable estoppel did
not apply because there was no unfair inducement by defendant’s attorney that caused the delay
in service. Plaintiffs appeal.

When a suit is commenced by filing a complaint, the plaintiff must serve the defendant
within sixty days. V.R.C.P. 3(a) (“When an action is commenced by filing, summons and
complaint must be served upon the defendant within 60 days after the filing of the complaint.”);
see Doe v. Camacho, 2024 VT 72, ¶ 22 (noting that “Rule 3 unambiguously requires that a
plaintiff who commences an action by filing a complaint serve all defendants within sixty days”).
If service is not timely made, the action may be dismissed. V.R.C.P. 3(a). Generally, the proper
method of service requires that the summons and complaint be served by a sheriff or similarly
authorized person. V.R.C.P. 4(c), (d). The return of service must then be filed with the court.
V.R.C.P. 4(i). The time to complete service may be extended for good cause, but the party must
show excusable neglect if the request to extend is made after the period for service expires. See
V.R.C.P. 6(b)(1)(B) (allowing extension of time for good cause and “on motion made after the
time has expired if the party failed to act because of excusable neglect”). We review the court’s
decision to dismiss and its denial of plaintiffs’ request for an extension for an abuse of discretion.
See Clark v. Baker, 2016 VT 42, ¶ 20, 201 Vt. 610.

On appeal, plaintiffs first argue that the sixty-day requirement should not be strictly
enforced against them because they are representing themselves and they believed that service
was timely made based on defendant’s March 21 letter and information on the judiciary website
they allege indicates that service is sufficient if it puts the other party on notice. Plaintiffs
emphasize that defendant was aware of plaintiffs’ suit as evidenced by the March 21 letter from
defendant’s attorney.

The court acted within its discretion in finding that plaintiffs had not served defendant
within sixty days as required by the civil rules. The fact that plaintiffs represented themselves
was not itself a basis for the court to exempt them from following the rules. Procedural rules are
used to provide uniformity and regularity for all litigants and the court does not abuse its

2
discretion by enforcing those rules against self-represented parties. In re Verizon Wireless
Barton Permit, 2010 VT 62, ¶ 21, 188 Vt. 262. Although plaintiffs sent defendant a letter, this
did not suffice as proper service. See V.R.C.P. 4(c), (d). Indeed, plaintiffs’ letter to defendant
acknowledged that proper service had not yet been accomplished and indicated that if defendant
did not submit a waiver of service, then plaintiffs would serve by sheriff. Defendant’s March 21
response to plaintiff did not amount to proof of service as defendant neither waived service nor
acknowledged completion of personal service.

Plaintiffs also contend that the court had discretion to extend the time for them to
complete service. Because plaintiffs’ request for an extension came after the period had expired,
plaintiffs had to show good cause for the extension and that their failure to act was the result of
excusable neglect. V.R.C.P. 6(b)(1)(B). Plaintiffs argue that the court abused its discretion in
declining to find excusable neglect. See Shields v. Gerhart, 163 Vt. 219, 221 (1995) (reviewing
trial court’s decision regarding request for extension of time for excusable neglect for an abuse
of discretion). “Excusable neglect requires, at a minimum, some reasonable basis for
noncompliance within the allotted time period.” Miller v. Ladd, 140 Vt. 293, 297 (1981) (per
curiam). Mere oversight or ignorance of the rules are not sufficient to show excusable neglect.
Shields, 163 Vt. at 221 (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2858
(1973)). Otherwise, there would be no limits upon extensions of time for any reason. Miller,
140 Vt. at 297. Here, the court found that the delay in service was attributable to plaintiffs’
failure to follow the contractual pre-suit mediation requirement, and this was a requirement
known to plaintiffs and within their control to comply with. The court acted well within its
discretion in denying the request to extend time on this basis. See id. at 297-98 (explaining that
abuse of discretion is found “only upon a showing that the court withheld it altogether, or that it
exercised it for clearly untenable reasons or to an extent clearly untenable”).

Plaintiffs next contend that equitable estoppel precludes defendant from alleging
untimely service.2 To prove equitable estoppel, a plaintiff has the burden to demonstrate four
elements:

(1) the party to be estopped must know the facts; (2) the party
being estopped must intend that his conduct shall be acted upon or
the acts must be such that the party asserting the estoppel has a
right to believe it is so intended; (3) the latter must be ignorant of
the true facts; and (4) the party asserting the estoppel must rely on
the conduct of the party to be estopped to his detriment.

Beebe v. Eisemann, 2012 VT 40, ¶ 13, 192 Vt. 613 (mem.) (quotations omitted). Equitable
estoppel is not invoked for a party “whose own omissions or inadvertences contributed to the
problem.” Id. (quotation omitted). We review the trial court’s conclusion regarding application
of the doctrine without deference. Id. ¶ 12.

Here, plaintiffs assert that defendant’s attorney induced them into thinking that service
had been accomplished and then moved for dismissal on that basis. Plaintiffs acknowledge that
they were aware of the duty to serve but did not have the sheriff serve because they believed in

2
Defendant argues that the issue of equitable estoppel was not preserved for review
because it was raised by the trial court and not argued by plaintiffs in the civil division. We need
not resolve whether the issue was properly preserved because we conclude that even if preserved
plaintiffs have not established the elements of the claim.

3
good faith that defendant accepted service through the March 21 letter. Plaintiff’s good-faith
belief is insufficient to establish equitable estoppel. Under the second element, plaintiffs must
show that defendant took some action intended to induce plaintiffs’ reliance. Plaintiff has not
presented any facts to show that defendant’s action was intended to lead plaintiffs into believing
that they had satisfied the service requirement. The March 21 letter did not contain any
inducement to delay service or representation that service had been accomplished. The letter
explained defendant’s position that the contract required mediation prior to suit. Defendant did
not indicate that it was waiving service or that the notification of suit was sufficient to
accomplish service. Therefore, plaintiffs have not established that equitable estoppel applies.

Affirmed.

BY THE COURT:

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

4