White Current Corp. v. State, Agency of Transp., 399-80

Citation438 A.2d 393,140 Vt. 290
Decision Date03 November 1981
Docket NumberNo. 399-80,399-80
CourtUnited States State Supreme Court of Vermont
PartiesThe WHITE CURRENT CORPORATION v. STATE of Vermont, AGENCY OF TRANSPORTATION.

Roger W. Lamson, North Hartland, for plaintiff.

John J. Easton, Jr., Atty. Gen., and Richard M. Finn, Asst. Atty. Gen., Montpelier, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and LARROW, J. (Ret.), Specially Assigned.

PER CURIAM.

The plaintiff-appellant, White Current Corporation, filed a complaint in the Windsor Superior Court against the defendant-appellee, State of Vermont, Agency of Transportation, seeking restitution of a flowage easement allegedly taken by the defendant without a proper highway condemnation proceeding. In its answer, the defendant asserted the affirmative defenses of estoppel and the statute of limitations. Simultaneously, the defendant moved to dismiss the complaint for failure to state a cause of action, pursuant to V.R.C.P. 12(b)(6), on the ground of estoppel. The trial court dismissed the complaint on the basis of the pleadings and arguments of counsel reasoning that "plaintiff is estopped from now asserting the claim." The motion was heard and the order signed, not only by the presiding judge but also by the two assistant judges. Plaintiff appeals this order.

It should be noted again this was an equitable action and the assistant judges should not and cannot participate therein. 4 V.S.A. § 219; Pockette v. LaDuke, 139 Vt. ---, ---, 432 A.2d 1191, 1192 (1981); Nugent v. Shambor, 138 Vt. 194, 199, 413 A.2d 1210, 1213 (1980) (Billings, J., concurring). No claim of error is predicated upon this issue, and the decision was a unanimous one so it is harmless here, Travelers Insurance Co. v. Blanchard, 139 Vt. ---, ---, 433 A.2d 296, 296 (1981), absent a showing that the assistant judges actually participated in the hearing and the making of findings of fact. Maskell v. Beaulieu, 140 Vt. ---, ---, 435 A.2d 699, 700 (1981).

A motion to dismiss for failure to state a claim upon which relief can be granted, V.R.C.P. 12(b)(6), challenges the sufficiency of the complaint and admits all factual allegations well pleaded by the nonmoving party. Bennett Estate v. Travelers Insurance Co., 138 Vt. 189, 190-91, 413 A.2d 1208, 1209 (1980). All reasonable inferences that can be drawn therefrom are assumed to be true and all contravening assertions in the movant's pleadings are assumed to be false. Reynolds v. Sullivan, 136 Vt. 1, 3, 383 A.2d...

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6 cases
  • Soucy v. Soucy Motors, Inc.
    • United States
    • Vermont Supreme Court
    • December 12, 1983
    ...again this was an equitable action and the assistant judges should not and cannot participate therein." White Current Corp. v. State, 140 Vt. 290, 291, 438 A.2d 393, 394 (1981). Immediately afterward, however, the Court found the error to be harmless. Id. Finally, two months before Humiston......
  • Lillicrap v. Martin
    • United States
    • Vermont Supreme Court
    • July 14, 1989
    ...statute of limitations. The statute of limitations must be pled as an affirmative defense. V.R.C.P. 8(c); White Current Corp. v. State, 140 Vt. 290, 292, 438 A.2d 393, 394 (1981). Otherwise, the defense is waived. See R. Brown & Sons v. Credit Alliance Corp., 144 Vt. 142, 145-46, 473 A.2d 1......
  • Solomon v. Atlantis Development, Inc., 403-81
    • United States
    • Vermont Supreme Court
    • August 31, 1984
    ...v. Bishop Farm, Inc., 140 Vt. 606, 443 A.2d 464 (1982); Braun v. Humiston, 140 Vt. 302, 437 A.2d 1388 (1981); White Current Corp. v. State, 140 Vt. 290, 438 A.2d 393 (1981); Brower v. Holmes Transportation, Inc., 140 Vt. 114, 435 A.2d 952 (1981). Thus, Soucy established a new principle of l......
  • Amiot v. Ames
    • United States
    • Vermont Supreme Court
    • February 28, 1997
    ...are accepted, and all contravening assertions in the movant's pleadings are assumed to be false. White Current Corp. v. State, 140 Vt. 290, 292, 438 A.2d 393, 394 (1981) (per curiam), overruled on unrelated grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983). Defendant ......
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