19-2932
Von Weingarten v. Chester

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
28th day of August, two thousand twenty.

Present:      ROSEMARY S. POOLER,
              PETER W. HALL,
              DENNY CHIN,
                          Circuit Judges.
        _____________________________________________________

ALBERT VON WEINGARTEN, MARY VON WEINGARTEN,

                               Plaintiffs-Appellants,

                        v.                                                  19-2932-cv

LONNIE CHESTER,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:       Harold B. Stevens, Stowe, VT.

Appearing for Appellee:        Duncan F. Kilmartin, Newport, VT.
                               Thomas E. McCormick (on the brief), Burlington, VT.

Appeal from the United States District Court for the District of Vermont (Reiss, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
       Appellants Albert and Mary Von Weingarten appeal from the August 28, 2019 order of
the United States District Court for the District of Vermont (Reiss, J.) granting defendant Lonnie
Chester’s motion for summary judgment on their claims for malicious prosecution, abuse of
process, and maladministration of an estate. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

       Grants of summary judgment are reviewed de novo and will be upheld only when,
“construing all the evidence in the light most favorable to the [nonmoving party] and drawing all
reasonable inferences in that party’s favor, there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law.” Rivera v. Rochester Genesee Reg’l
Transp. Auth., 743 F.3d 11, 19 (2d Cir. 2014) (internal quotation marks and citation omitted).

        We turn first to the Von Weingartens’ malicious prosecution claim. Under Vermont law,
“[i]n order to recover for malicious prosecution, a plaintiff must demonstrate that a party
instituted a proceeding against the individual without probable cause, that the party did so with
malice, that the proceeding terminated in that individual’s favor, and that the individual suffered
damages as a result of the proceeding.” Siliski v. Allstate Ins. Co., 811 A.2d 148, 151 (Vt. 2002).
A voluntary dismissal may be considered a favorable termination “if the dismissal somehow
indicates that the defendant is innocent of wrongdoing.” Id. at 151-52. “On the other hand, if the
reason for dismissal is not inconsistent with a defendant’s wrongdoing, it will not be considered
a favorable termination.” Id. at 152 (internal quotation marks and citation omitted).

       We agree with the district court that the proceeding at issue in this case—the Vermont
Superior Court suit—was not terminated in the Von Weingartens’ favor. Although the Von
Weingartens argue that it was favorably terminated because the settlement provided that they pay
only $50,000, which is much less than the amount Chester originally sought against them, the
settlement noted that neither party admitted fault. Therefore, the settlement itself “is not
inconsistent” with the Von Weingartens’ wrongdoing, and thus it cannot constitute a favorable
termination. See Siliski, 811 A.2d at 152. The district court’s grant of summary judgment to
Chester on this claim was not erroneous.

        We next turn to the district court’s grant of summary judgment to Chester on the Von
Weingartens’ abuse of process claim. The Von Weingartens’ argument on this point, which
spans two paragraphs in total, merely reiterates their arguments as to why the district court erred
in granting summary judgment on the malicious prosecution claim. We accordingly conclude
that the Von Weingartens have waived any challenge to the district court’s decision on this issue.
See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in
the briefs are considered waived and normally will not be addressed on appeal.”).

        The final issue we take up is whether the district court properly concluded that the Von
Weingartens’ maladministration of an estate claim fails as a matter of law because the Vermont
Supreme Court would most likely not recognize that cause of action. “Where the substantive law
of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict
how the highest court of the forum state would resolve the uncertainty or ambiguity.” State Farm
Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (internal quotation marks and
citation omitted).



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        We agree with the district court that the Vermont Supreme Court would likely not
recognize a separate cause of action for maladministration of an estate, at least on these facts, for
a number of reasons. First, the Restatement (Second) of Torts does not recognize a cause of
action for maladministration of an estate, and the Vermont Supreme Court has frequently looked
to the Restatements for guidance. See Skaskiw v. Vt. Agency of Agric., 112 A.3d 1277, 1283 (Vt.
2014) (looking to the Restatement (Second) of Torts, provisions of which it has “frequently . . .
adopted,” in addressing a defamation claim); cf. Birchwood Land Co. v. Krizan, 115 A.3d 1009,
1012 (Vt. 2015) (noting that the court “frequently [has] adopted provisions of [the Restatement
(Third) of Restitution & Unjust Enrichment] where our law is undeveloped”).

        Second, Vermont has a detailed procedure for adjudicating concerns regarding a probate
estate’s administration. See Vt. Stat. Ann. tit. 5, § 35; Vt. Stat. Ann. tit. 14, § 917. These aspects
of state law further suggest that any claims for maladministration would not be recognized
independent from the typical probate process.

         As the district court noted, the Vermont Supreme Court does not affirmatively recognize
a cause of action for maladministration of an estate outside the context of probate proceedings
nor is it likely to do so. The Vermont Supreme Court has explained:

         [F]ree access to the courts is an essential right recognized by our state
         constitution. To curb the more serious abuses of that right two carefully restricted
         torts are recognized: abuse of process and malicious prosecution. If the well-
         reasoned balance thereby struck between free access and remedy for serious
         abuse is really to mean anything then we must not permit . . . circumvention by
         affording an . . . unrestricted action under a different label.

Jacobsen v. Garzo, 542 A.2d 265, 268 (Vt. 1988) (internal quotation marks and citation omitted).
“Maladministration” is not one of the “two carefully restricted torts” recognized under Vermont
law in this context. Further, the Von Weingartens’ attempt to bring a maladministration claim is
exactly the type of “circumvention” that the Vermont Supreme Court said it would “not permit.”
Just as the Vermont Supreme Court held “that a claim for tortious interference with contractual
relations cannot be predicated upon an allegedly improper filing of a lawsuit,” id., so too would
it hold that a claim for maladministration of an estate cannot be based on an executor’s filing and
pursuit of a lawsuit. The Von Weingartens’ “appropriate remedy, if any, lies in an action for
malicious prosecution because this tort operates to protect the counter-policy of free access to the
courts.” Id. As we explained above, however, their claim for malicious prosecution fails.




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       We have considered the remainder of the Von Weingartens’ arguments and find them to
be without merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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