Blackwood v. Campbell, No. S0665-05 CnC (Norton, J., Aug. 18, 2005)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                              Docket No. S0665-05



BLACKWOOD

v.

CAMPBELL




                                 ENTRY

       On Defendant’s motion to dismiss, the court is presented with the
narrow question of whether venue may be based on the residence of a
court-appointed guardian. Guardian argues that she is a party for the
purposes of 12 V.S.A. § 402(a) because V.R.C.P. Rule 17 allows her to sue
in her own name without joining the minor child. Defendant disputes this
position and cites to longstanding Vermont law—albeit predating the
adoption of the Rules of Civil Procedure—as well as numerous out of state
sources that have held the opposite. Duffy v. Pinard, 41 Vt. 297, 300–01
(1868); e.g., Black By and Through Bayless v. Cullar, 665 P.2d 1029, 1031
(Colo. App. 1983).
        Guardian’s argument is that, while she is not the real party in
interest, 12 V.S.A. § 402(a) does not distinguish between real party in
interest and a party for procedural purposes. Guardian cites to 13 U.S.C. §
1332(c)(2) (federal court diversity jurisdiction) to show that a statute can be
written explicitly to block the effect that she seeks. Notwithstanding
Guardian’s appealing “plain reading” of § 402, Rule 17 does not raise
Guardian to the full party status that would otherwise allow her to seek
jurisdiction in her home court. Rule 17 makes clear that a guardian is a
representative for the real party in interest and that the guardians rights and
interests are not involved in such litigation. Guardian is merely advocating
and working on behalf of another, the child, who by virtue of her age is
prevented from filing herself. As such, Guardian is not a “party” in the
important sense that jurisdiction would flow from her presence in the
litigation. Such rights remain vested in the child, and the overwhelming
jurisprudence in this area dictates that it is the child and not the guardian
who dictates venue and jurisdiction. 42 Am. Jur. 2d Infants § 172 (citing
Cozine v. Bonnick, 245 S.W.2d 935 (Ky. 1952). Therefore, venue based
on Guardian’s residence is improper.

       Based on the foregoing, Defendant’s motion to dismiss is Granted.
Case is Dismissed Without Prejudice.

       Dated at Burlington, Vermont________________, 2005.
________________________________
           Richard W. Norton, Judge
