Molleur v. Bucknam, No. 251-9-14 Cacv (DiMauro, J., May 29, 2015).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text
and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                              STATE OF VERMONT
SUPERIOR COURT                                                                          CIVIL DIVISION
Caledonia Unit                                                                          Docket No. 251-9-14 Cacv

MICHEL J. MOLLEUR and
CAROLYN C. BROWN, Plaintiffs
    v.
DEBORAH T. BUCKNAM and
BUCKNAM & BLACK, P.C.,
    Defendants


                                            DECISION
                     Plaintiffs’ Motions to Reconsider and Amend Complaint
                                                     BACKGROUND
       In 2001, Plaintiff Molleur was appointed as guardian of his granddaughter, “KM,” due to
substance abuse issues with KM’s parents.1 KM came to live with both Plaintiffs who began to
serve as KM’s primary caregivers. In March 2011, the Vermont Supreme Court affirmed the
denial of Mr. Molleur’s previous petition to terminate the parental rights of KM’s father, but
reversed the trial court’s decision allowing Mr. Molleur’s guardianship of KM to continue, and
remanded the case to the trial court for an order transferring custody of KM to her father “within
an appropriate time.” See In re K.M.M., 189 Vt. 372, 385 (2011).
        On April 1, 2015, this court issued an entry order granting Defendant’s motion to dismiss
Plaintiffs’ claims for breach of contract, deceit in billing, and damages for emotional distress. In
addition, the court denied Defendant’s motion to dismiss Carolyn Brown as a plaintiff and
Plaintiffs’ consumer fraud claim.
        On April 13, 2015, Plaintiffs filed a motion to amend their complaint, as well as a motion
to reconsider their emotional distress claim. Plaintiffs contend that the continuous representation
rule applies because Defendants ceased representing them less than three years before they filed
the instant action. Plaintiffs also assert that “Vermont law may no longer require allegation of
‘some bodily hurt’ when emotional distress is practically guaranteed by the nature of the
negligence, as in a child custody case.”

       In a response filed on May 11, 2015, Defendants assert that the continuous representation
rule “has never been adopted [in] Vermont, nor has it been widely adopted in the Northeast.”
Defendants argue that even if the continuous representation standard of other states were applied
to the facts of this case, Plaintiff could not prevail, where the Supreme Court’s decision

1
    In its April 1, 2015 decision, the court misidentified the grandchild as Plaintiff Molleur’s “grandson.”
“effectively ended the litigation in this matter.” Defendants further argue that the court’s
dismissal of Plaintiffs’ emotional distress claim is consistent with Vermont law.

        Plaintiffs supplement their motion to reconsider and reply to Defendants’ opposition by
contending that it is unreasonable to expect them to “start thinking about suing their lawyer
while the lawyer was still trying to minimize their injury.” Additionally, they reiterate their
assertion that the court “apparently did not consider that recent Vermont Supreme Court cases
may allow recovery for negligently caused emotional distress without any physical harm.”

                                           ANALYSIS

   1. Motion to Reconsider

        While Plaintiffs do not cite the authority under which they have filed the instant motion,
this court considers a motion to reconsider a pre-trial order under Vermont Rules of Civil
Procedure Rule 54(b). V.R.C.P. 54(b) (providing that, absent a final judgment, “any order or
other form of decision” adjudicating fewer than all of the claims or fewer than all the parties
“is subject to revision at any time before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties”).

         The continuous representation doctrine has been adopted in attorney malpractice claims
to toll the statute of limitations where the occurrence rule otherwise “compels clients to sue their
attorneys though the relationship continues, and there has not been and may never be any
injury.” LEGAL MALPRACTICE, STATUTES OF LIMITATIONS § 23:45 Commencement or
accrual—The continuous representation rule—Status of the rule. Jurisdictions in neighboring
states have adopted this doctrine, with varying yet comparable standards. The Connecticut
standard requires that: (1) the defendant continued to represent the plaintiff with regard to the
same underlying matter; and (2) the plaintiff did not know of the alleged malpractice or the
attorney could still mitigate the harm allegedly caused by the malpractice during the period of
continued representation. See Sean O’Kane A.I.A. Architect, P.C., v. Puljic, 148 Conn.App. 728,
734 (2014) (citing DeLeo v. Nusbaum, 263 Conn. 588, 596-597 (2003)). Similarly, New York
courts require “clear indicia of an ongoing, continuous, developing, and dependent relationship
between the client and the attorney which often includes an attempt by the attorney to rectify an
alleged act of malpractice” for the continuous representation doctrine to apply.” Pellati v. Lite &
Lite, 736 N.Y.S.2d 419, 421 (2d Dep’t 2002) (citing Luk Lamellen U. Kupplungbau gmbH v.
Lerner, 560 N.Y.S.2d 787 (2d Dep’t 1990)). Massachusetts courts have held simply that the
continuing representation doctrine “‘tolls the statute of limitations in legal malpractice actions
where the attorney in question continues to represent the plaintiff’s interests in the matter in
question.’” Vinci v. Byers, 837 N.E.2d 1140, 1145 (Mass.App.Ct. 2005) (citing Murphy v.
Smith, 411 Mass. 133, 137 (1991)). However, they have emphasized that the doctrine has no
application “where the client actually knows that he suffered appreciable harm as a result of his
attorney’s conduct.” Id. (citing Lyons v. Nutt, 436 Mass. 244 (2002)).

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        Here, more than six months following the filing of the original complaint and only after
dismissal of their emotional distress claim, Plaintiffs argue for the first time that the continuous
representation doctrine applies in this case to toll the statute of limitations on that claim. The
Supreme Court’s March 2011 decision unequivocally terminated Plaintiff Molleur’s
guardianship and ordered transfer of custody of the subject child to the father. In re K.M.M., 189
Vt. at 385. As determined in this court’s previous decision, Plaintiffs were on notice at that point
of the loss of the child they had been caring for since infancy. Plaintiffs allege that this loss
caused them emotional harm. Thus, in contrast to the circumstances contemplated under LEGAL
MALPRACTICE § 23:45, the injury purportedly caused by the defendant attorney was not merely
speculative and Plaintiffs, at the least, should have known of the harm. Indeed, in arguing that
Defendants attempted to “minimize the injury” by continuing to represent them, Plaintiffs
acknowledge that the harm had already occurred. However, given that the Supreme Court
explicitly provided leeway in the timing of the transfer of the subject child, this court is not
persuaded that Defendants’ continued representation of Plaintiffs could serve to “mitigate” any
injury to Plaintiffs. Further, Defendants could not effectively “rectify” the alleged malpractice
where the case had already been appealed to the Vermont Supreme Court. See Pellati, 736
N.Y.S.2d at 421. Under these circumstances, the court declines to adopt the continuous
representation doctrine to toll the statute of limitations on Plaintiffs’ emotional distress claim.
   2. Emotional Distress Claim

        Generally, “‘[a]bsent physical contact, one may recover for negligently caused emotional
distress only when the distress is accompanied by substantial bodily injury or sickness.
Accordingly, one must show some physical effect of any claimed emotional injury—some bodily
hurt—in order to prevail.’” Vincent v. DeVries, 193 Vt. 574, 579 (2013) (citing Fitzgerald v.
Congleton, 155 Vt. 283, 292 (1990)). Nonetheless, emotional distress damages may lie in the
absence of physical manifestations under “special circumstances.” Id. Mishandling of bodily
remains and negligent transmission of a message announcing death have long been established as
two types of special circumstances in which emotional distress damages have been warranted.
Id. at 580. The Vermont Supreme Court has suggested that a claim of emotional distress might
also be viable where “common sense and compelling evidence confirm the likely validity of a
claim.” Id. at 581. External courts have recognized this exception where legal malpractice leads
to a loss of liberty or separation from one’s child for a period of years. Id. at 585. In the same
vein, some courts considering recovery of damages for severe emotional distress have required
egregious conduct on the part of the defendant attorney, coupled with personal loss. Id. at 587
(citing Garland v. Roy, 2009 ME 86 ¶¶ 24-27 (“We have never allowed the recovery of
emotional distress damages in legal malpractice actions that involve only an economic loss and
no egregious conduct by the attorney.”); Lickteig v. Alderson, Ondony, Leonard & Sween, P.A.,
556 N.W.2d 557, 561-62 (Minn. 1996) (emotional distress damage award improper where
lawyer’s conduct was merely negligent and not willful, wanton or malicious); Selsnick v. Horton,
96 Nev. 944 (1980) (damages for emotional distress not available in legal malpractice suit
premised upon ordinary negligence, with no allegation of extreme and outrageous conduct)).



                                                 3
        Even if the court were inclined to apply the continuous representation doctrine in this
instance, it nevertheless finds, as it did previously, that in light of the case law, Plaintiffs’ bare
allegation that they suffered “serious emotional distress” does not adequately state a claim for
damages based on emotional distress. The jurisdictions which have departed from considering
damages for emotional distress only in cases involving physical impact have made it clear that
the instances in which such damages are recoverable without physical injury are exceptional and
involve “deeply emotional responses.” Id. at 585 (citing Miranda v. Said, No. 11-0552, 2012
WL 2410945 at *4 (Iowa Ct.App. June 27, 2012) (allowing claim for emotional distress damages
where defendant lawyer’s negligence caused plaintiffs to be deported and separated from their
children for at least ten years); Lawson v. Nugent, 702 F.Sup. 91, 95 (D.N.J. 1988) (involving
loss of liberty interest where plaintiff found to be entitled to seek damages for emotional distress
resulting from 20 additional months of confinement in maximum security penitentiary); Person
v. Behnke, 242 Ill.App.3d 933 (1993) (allowing claim for noneconomic damages resulting from
plaintiff’s loss of contact with children for over five years); McEvoy v. Helikson, 277 Or. 781
(1977) (finding plaintiff could be entitled to damages for “anguish and mental (suffering) due to
the loss of his minor child”)).

        The court finds the case law in favor of recovery of damages for emotional distress to be
inapposite to the instant case. Plaintiffs do not allege that they no longer have contact with the
subject child, nor do they allege egregious or outrageous conduct on the part of Defendants.
Additionally, while not intending to diminish the nature of the relationship between Plaintiffs
and the subject child, the court notes that it is unclear from the case law whether the same courts
would find that damages are recoverable in a guardianship action involving the grandparents of a
child, rather than the parents of children in custody proceedings. Although the court finds that
the underlying circumstances have resulted in a personal loss to Plaintiffs, there is no indication
that some “heightened level of culpability” on the part of Defendants resulted in “severe distress
such that no reasonable person could be expected to endure.” Akutagawa v. Laflin, Pick & Heer,
P.A., 2005-NMCA-132, ¶ 25. As such, the allegations before the court do not persuade it to
reach a different result with respect to its prior dismissal of Plaintiffs’ emotional distress claim.

   3. Motion to Amend

         Rule 15(a) of the Vermont Rules of Civil Procedure provides that leave to amend the
complaint “shall be freely given when justice so requires.” The Vermont Supreme Court has
prompted trial courts to “be mindful of the Vermont tradition of liberally allowing amendments
to pleadings when there is no prejudice to the other party.” Colby v. Umbrella, Inc., 184 Vt. 1, 5
(2008) (citing Tracy v. Vinton Motors, Inc., 130 Vt. 512, 513 (1972)). On the other hand, denial
of a motion under Rule 15(a) may be justified upon consideration of the following factors: “‘(1)
undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.’”
Id. (citing Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313 (1982)).



                                                  4
         The court has considered the above-enumerated factors and finds that amendment of the
Complaint is not warranted. Although Plaintiffs seek to add allegations in support of their
arguments raised for the first time since filing the original Complaint in September 2014, the
court will not find undue delay. The court likewise does not find that Plaintiffs have acted in bad
faith. However, the court concludes that amendment of the pleadings would be futile, in light of
its rulings in the foregoing sections. In addition, permitting Plaintiffs to amend the Complaint in
a manner that retains the emotional distress claim would cause prejudice to Defendants. The
court therefore denies Plaintiffs’ motion to amend.

                                           Conclusion
         Plaintiffs’ motion to reconsider is GRANTED. Upon reconsideration, the court declines
to alter its original decision dismissing Plaintiffs’ emotional distress claim.
       Plaintiffs’ motion to amend the complaint is DENIED.

       SO ORDERED.
       Dated this ___ day of May 2015.


                                                 ____________________
                                                 Hon. Theresa DiMauro
                                                 Superior Court Judge




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