224 A.3d 116
Vt.2019Background
- Plaintiffs Lofts Essex, LLC (and associated Wilson Inn) purchased ~30,000 sq ft of Strategis "Inspira" luxury vinyl plank (LVP) flooring for a 54‑unit apartment building. Shortly after installation, numerous small blue/blue‑green spots and plank separation were observed.
- The Lofts submitted a warranty claim through their local seller and NRF (regional distributor). Crowley Floors (original retailer) had gone out of business; NRF forwarded the claim to Strategis.
- Inspector Richard Reed examined samples, peeled back the wear layer, and observed a dense, powdery/foreign material beneath the wear layer. Strategis expert Mark Reagan inspected units and concluded the cause was unknown; neither expert had seen the problem before.
- Trial court denied the Lofts’ pretrial motion for partial summary judgment (holding denial was premised on sufficiency of evidence that the spots were a manufacturing defect). At bench trial the court assumed (without deciding) Strategis bore the burden on defect but found Strategis showed it was more likely the spots occurred post‑manufacture and entered judgment for Strategis.
- Plaintiffs appealed, arguing (inter alia) the summary‑judgment denial was reviewable/legal error, the court misweighed evidence, improperly excluded fact‑witness opinion, and erred on the Consumer Protection Act claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of pretrial denial of summary judgment | Trial court erred by denying summary judgment on express‑warranty claim; summary judgment should be reviewed | A pretrial denial grounded on sufficiency of evidence becomes moot after trial; legal issues are reviewable but not sufficiency outcomes | Denial was based on sufficiency of evidence and is not reviewable post‑trial; any alleged legal error was rendered moot by trial assumption favorable to plaintiff |
| Cause of blue spots / weight of evidence | Reed’s inspection and testimony established manufacturing defect (spots under wear layer) | Lack of similar complaints, factory inquiry, and experts’ unfamiliarity support non‑manufacturing origin | Trial court’s factual findings and inferences (no similar complaints, factory and expert testimony) were supported by record; affirmed |
| Exclusion of fact‑witness opinion (Sean Ryan) | Hutchins permits fact witnesses to give opinions developed during participation; Ryan should have been allowed to testify on causation | Ryan was disclosed and used only as a cost/installation fact witness; he did not form or disclose a causation opinion during the events | Court did not abuse discretion in excluding Ryan’s causation opinion; he had not developed that opinion in the course of his participation |
| VCPA liability (consumer protection) | Marketing brochure promising "lifelike wood" was misleading; knowledge is not required for VCPA liability | No actionable misrepresentation here because there was no evidence the product defect existed or that Strategis made a misleading statement that would deceive a reasonable consumer | Affirmed on alternate ground: plaintiff failed to identify a representation likely to mislead a reasonable consumer because there was no evidence the spots were a manufacturing defect |
Key Cases Cited
- Stratton Corp. v. Engelberth Constr., Inc., 123 A.3d 393 (Vt. 2015) (general rule that pretrial denial of summary judgment is usually not appealable after trial)
- Rekhi v. Wildwood Indus., 61 F.3d 1313 (7th Cir. 1995) (distinguishes nonreviewable denials based on evidence sufficiency from reviewable legal rulings)
- Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004) (distinguishes summary‑judgment denials raising legal questions from those raising fact‑sufficiency questions)
- Hutchins v. Fletcher Allen Health Care, Inc., 776 A.2d 376 (Vt. 2001) (mem.) (treats as fact witnesses those experts whose opinions were formed in the course of participating in events giving rise to suit)
- Finley v. Williams, 453 A.2d 85 (Vt. 1982) (standard of appellate review for trial‑court factual findings)