Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-030

                                          MAY TERM, 2014

 Charles Chandler                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Civil Division
                                                       }
 Vermont Mutual Insurance Company and                  }
 Ronald Gifford, Individually                          }    DOCKET NO. 224-5-13 Wmcv

                                                            Trial Judge: Mary Miles Teachout

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

       Plaintiff appeals pro se from a superior court order dismissing his complaint against
defendants on principles of comity. We affirm.

        The record discloses the following. In December 2012, plaintiff and Faye Ainsworth
filed a fourteen-page, six-count complaint in the Massachusetts Superior Court against Vermont
Mutual Insurance Company, its agent, Robert Gifford, Servpro of Keene Inc., Richard Paul, and
Ryan Paul. The complaint alleged that, in June 2009, plaintiff purchased home insurance from
Vermont Mutual for his property in South Deerfield, Massachusetts; that on March 11, 2011, a
chimney fire occurred at the property; that plaintiff then met with Ryan Paul of the contracting
company Servpro of Keene Inc., New Hampshire, who promised to make the necessary repairs
to the property; and that Ryan and Richard Paul then met with representatives of Vermont
Mutual, including Robert Gifford, who agreed on the work to be performed.

        Plaintiff further alleged that Servpro and Vermont Mutual then “decided to cover up and
hide” much of the damage to the property; that Servpro removed and kept valuable items from
the home; that “no repairs were made or performed in a competent and work like manner,” that
the home as a result remained uninhabitable; and that Vermont Mutual wrongly refused to pay
the estimated $330,000 it would require to repair the home to its original condition. Plaintiff
sought damages against Vermont Mutual for its “delay and unfair claims practices,” against
Ronald Gifford for “forc[ing] the plaintiffs from their home,” and against Servpro and the Pauls
for allegedly causing and covering up damages in the course of repairs.

        In February 2013, plaintiff and Ainsworth filed an amended complaint in the
Massachusetts Superior Court against the same parties, asserting—on essentially the same
facts—claims for breach of contract, unjust enrichment, breach of consumer protection law, and
unfair and deceptive insurance practices.1 Vermont Mutual and Gifford moved to dismiss the

         1
          At about the same time, the Massachusetts court ordered that the action be “merged”
with an already existing case involving the same parties. The earlier case arose from an original
complaint by Servpro against plaintiff and Ainsworth in the Massachusetts District Court for
complaint or for a more definite statement. On April 3, 2013, the Massachusetts court issued an
order granting the motion to dismiss as to Count 1 for breach of contract, based on plaintiff’s
failure to satisfy a statutory condition precedent to bringing the claim.2 The court also granted
the motion for a more definite statement as to Count 2, unjust enrichment, but denied the motion
for dismissal as to Counts 2 through 4. The case thus remains pending.

       About a month later, on May 14, 2013, plaintiff and Ainsworth filed a complaint against
defendants Vermont Mutual and Robert Gifford in the superior court in Vermont. The complaint
alleged essentially the same facts as the earlier complaints filed in Massachusetts, and stated
claims for breach of contract and unjust enrichment. Defendants, in response, moved to dismiss
the complaint on principles of comity, in deference to the fact that a nearly identical earlier-filed
case was pending in Massachusetts. In a written order issued in January 2014, the trial court
granted the motion to dismiss without prejudice, and entered judgment for defendants. This pro
se appeal followed.3

        Plaintiff contends that the court erred in dismissing the complaint on comity grounds
because the Massachusetts court dismissed one of his counts for breach of contract. As we have
recognized, “principles of comity can provide a[] . . . basis for nonintervention by a Vermont
court in a dispute that has already come before some other forum.” Cavallari v. Martin, 169 Vt.
210, 215 (1999). The doctrine is designed to foster cooperation among the states, preclude
forum-shopping, avoid multiple or inconsistent judgments, and promote judicial economy by
allowing a court, in its discretion, to stay or dismiss a proceeding “where an action concerning
the same parties and the same subject matter has been commenced in another jurisdiction capable
of granting prompt and complete justice.” Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 695
(Ind. Ct. App. 2013); see also McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co.,
263 A.2d 281, 283 (Del. 1970) (observing that discretion to stay or dismiss case where action is
pending elsewhere “should be exercised freely” to prevent multiple actions, “avoid the wasteful
duplication of time, effort, and expense . . . [through] adjudication of the same cause of action in
two courts” and avoid “the possibility of inconsistent and conflicting rulings”); Sensient Colors
Inc. v. Allstate Ins. Co., 939 A.2d 767, (N.J. 2008) (“[A] New Jersey state court ordinarily will
stay or dismiss a civil action in deference to an already pending, substantially similar lawsuit in
another state, unless compelling reasons dictate that it retain jurisdiction.”).




damages arising out of the same set of facts. Plaintiff counterclaimed against Servpro and
Vermont Mutual, and the Massachusetts District Court, in October 2012, granted plaintiff’s
motion to remove the counterclaims to Superior Court because they exceeded the District
Court’s $25,000 jurisdictional limit.
       2
           Mass. Gen. Laws ch. 175, § 99 provides that where parties do not agree to the amount
of loss to the insured property, the parties must submit to reference by three ‘disinterested’
individuals, a majority of whom shall determine the amount of loss or damage. Such reference,
unless waived by the parties, “shall be a condition precedent to any right of action in law or
equity to recover for such loss.”
       3
          Although plaintiff’s appeal was from the order of dismissal rather than the subsequent
judgment for defendants based on the order, we deem the appeal to be from the subsequently-
filed judgment. V.R.A.P. 4(a)(3).
                                               2
       Although the Massachusetts court dismissed one count of plaintiff’s complaint, the
remaining counts are alive and well and pending. The case in Massachusetts includes counts of
unjust enrichment, claims of collusion between Vermont Mutual and defendants Paul and
Servpro resulting in unfair business practice, unfair claims settlement practices including
misrepresentations and attempts to defraud plaintiffs from coverage, and other unfair and
deceptive acts. Plaintiff makes no assertion or showing that the Massachusetts court is incapable
of rendering a prompt and fair decision at trial or on appeal. Accordingly, we discern no basis to
disturb the Vermont court’s order of dismissal without prejudice based on the principles of
comity outlined above.

         Plaintiff also asserts that the court below improperly “refused” to read or review his
filings, and allowed defendants’ counsel to “present false and erroneous statements.” The claims
are unsupported, and provide no basis to disturb the judgment. Plaintiff also appears to question
Massachusetts’s exercise of jurisdiction. The record discloses that plaintiff filed complaints in
Massachusetts and affirmatively invoked its jurisdiction, and he makes no showing that
Massachusetts lacks jurisdiction. Finally, plaintiff contends the court erred in awarding
defendants their costs of action without specifying the amount recoverable. Costs are calculated
and “taxed by the clerk” following judgment, and may be objected to at that time. V.R.C.P.
54(e).

       Affirmed.



                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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