25-AP-223, 25-AP-247
Vt.Jul 17, 2026Background
- Bare, Ltd. employed Rossetti as its sole physician assistant under a written at-will employment agreement amended in 2018 with salary, vacation, and bonus terms tied to annual gross sales. 1
- Rossetti received bonuses in 2018 and 2019, but her employment ended on December 4, 2020 and she received no 2020 bonus; she claimed 17.5 unused PTO hours. 2
- Rossetti sued for underpaid 2018 and 2019 bonuses, a 2020 bonus, unused PTO, and related wage-statute relief; the parties later dismissed the noncompete and accounting claims. 3
- At trial, the court entered judgment as a matter of law for defendants on the 2020 bonus, PTO, and related wage claims, but submitted the 2018 and 2019 bonus claims to the jury. 4
- The jury found Bare underpaid the 2018 and 2019 bonuses, but the court later granted defendants judgment as a matter of law on those claims and entered judgment for defendants on all counts. 5
- The trial court denied defendants attorney’s-fee request, then on reconsideration held the contractual fee provision was unenforceable only as to wage claims and that defendants could seek fees for the separate 2020 implied-covenant claim. 6
- The Supreme Court affirmed judgment for defendants on Rossetti’s claims and reversed and remanded for reconsideration of defendants’ attorney’s-fee request. 7
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of Rule 50 ground 8 | Rossetti said defendants waived the post-trial Rule 50 ground by not renewing it at the close of all evidence. | Bare and Spano said their midtrial motion preserved the same sufficiency challenge. | Preserved; the midtrial motion gave fair notice of the bonus-sufficiency issue. 9 |
| 2018 and 2019 bonus sufficiency 10 | Rossetti said her expert’s evidence supported the jury’s finding of underpaid bonuses. | Bare said the expert used the wrong definition of gross sales and gave no competent proof of actual gross receipts. | Judgment for defendants affirmed; plaintiff failed to prove the required gross-sales figures. 11 |
| 2020 bonus and PTO implied-covenant claim 12 | Rossetti said Bare terminated her to avoid paying earned 2020 bonus and PTO. | Bare said the at-will termination was for a Saturday-work dispute, not bad faith. | Judgment for defendants affirmed; timing alone did not show bad faith. 13 |
| Spano personal wage liability 14 | Rossetti argued Spano willfully failed to pay 2020 wages under the wage statute. | Spano argued no wages were due because the 2020 bonus condition never occurred and PTO was unpaid leave, not wages. | Judgment for Spano affirmed. 15 |
| Defendants’ attorney’s fees 16 | Rossetti said the wage statute barred defendants’ contractual fee recovery. | Bare and Spano said the 2020 implied-covenant claim was separate from the wage claims and fee-shifting applied. | Reversed and remanded; defendants may seek fees for the nonwage 2020 claim. 17 |
Key Cases Cited
- Driscoll v. Wright Cut & Clean, LLC, 325 A.3d 145 (Vt. 2024) (Rule 50 judgments are reviewed de novo 18)
- Follo v. Florindo, 970 A.2d 1230 (Vt. 2009) (evidence is viewed in the light most favorable to the nonmoving party 19)
- Foti Fuels, Inc. v. Kurrle Corp., 90 A.3d 885 (Vt. 2013) (renewed Rule 50 motion is limited to grounds raised in the prior motion 20)
- State v. Ben-Mont Corp., 652 A.2d 1004 (Vt. 1994) (preservation requires specific and clear notice to the trial court 21)
- Beldock v. VWSD, LLC, 307 A.3d 209 (Vt. 2023) (unambiguous contract language is given its plain meaning 22)
- Marshall v. Milton Water Corp., 270 A.2d 162 (Vt. 1970) (a claim must be directly supported by evidence, not conjecture 23)
- LoPresti v. Rutland Regional Health Services, Inc., 865 A.2d 1102 (Vt. 2004) (implied covenant generally does not defeat at-will termination, but may apply to accrued benefits 24)
- Boynton v. ClearChoiceMD, MSO, LLC, 216 A.3d 1243 (Vt. 2019) (reaffirmed but declined to extend accrued-benefits covenant theory on the facts 25)
- Hammond v. Univ. of Vt. Med. Ctr., 308 A.3d 421 (Vt. 2023) (temporal proximity alone is insufficient once a legitimate reason for termination is shown 26)
- Carmichael v. Adirondack Bottled Gas Corp. of Vt., 635 A.2d 1211 (Vt. 1993) (good faith depends on context and typically requires conduct showing interference with the bargain 27)
- Tanzer v. MyWebGrocer, Inc., 203 A.3d 1186 (Vt. 2018) (wage statutes cover wages actually due under the agreement 28)
- L'Esperance v. Benware, 830 A.2d 675 (Vt. 2003) (parties bear their own fees absent contract or statute 29)
- Foster & Gridley v. Winner, 740 A.2d 1283 (Vt. 1999) (contractual attorney-fee provisions are enforceable 30)
- Fletcher Hill, Inc. v. Crosbie, 872 A.2d 292 (Vt. 2005) (courts generally enforce the parties’ fee-shifting bargain 31)