Petition for Writ of Certiorari — Sikorski v. Okemo Mountain Mountain, Inc. (No. 08-1528)

Supreme Court us.

/ 081528 JUN9 2009

No. OFFICE OF THE CLERK

IN THE

Supreme Court Of Che Anited States

PATRICK J. SIKORSKI,

Petittoner

v.

OKEMO MOUNTAIN, INC.

SALMON & NOSTRAND

RICHARD P. COUTANT,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

R. Bradford Fawley

Counsel of Record

Downs Rachlin Martin PLLC

28 Vernon Street

Brattleboro, VT 05301

(802) 258-3070

Attorney for Petitioner

(1)

QUESTION PRESENTED FOR REVIEW

Federal Rule of Civil Procedure 50(a)(1) provides:

If a party has been fully heard on an issue

during a jury trial and the court finds that a

reasonable jury would not have a legally

sufficient evidentiary basis to find for the

party on that tissue, the court may: (A)

resolve the issue against the party; and (B)

grant a motion for judgment as a matter of

law against the party on a claim or defense

that, under the controlling law, can be

maintained or defeated only with a favorable

finding on that issue.

(Emphasis added)

The question presented by this petition 1s:

Whether a party is deprived of his constitutional

right to a jury trial and due process when a court reviewing

the sufficiency of evidence pursuant to Rule 50 modifies the

question upon which the jury rendered its verdict and

enters judgment upon that modified question.

(11)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW........................0

SE EE REED osc ccesssescccvcrssscccsevscscvesscsssscerscnsees 11)

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION ...............0000... es mewarsoeid 2

RELEVANT PROVISIONS INVOLVED.................0...000...5

STATEMENT

REASONS FOR GRANTING THE PETITION................1:

I. A Bright Line Rule is Required

IT. For The Issue Raised By This

Petition, If The Questions Are

Different, It Should Make No

Difference Which Question Was

"eeeeeer «Gr “Worrect”................

The Two Questions Are

Materially Different From

Fe nnn. unsscevccevccecccess

6

i ge hk) ae

Circuit Court Opinion (July 16, 2004)

{i11)

District Court Opinion (November 16, 2006)

Circuit Court Opinion (December 19, 2008)

Order Denying Petition for Rehearing

(March 17, 2009)

Release

Jury Verdict

(iv)

TABLE OF AUTHORITIES

Page

CASES

Berry v. United States,

312 U.S. 450 (1941)........ PAA epee eRe UT AY ORY Ge RR ORE 0 13

E.R. Squibb & Sons, Inc. v. Lloyd’s & Companies,

AE Ee Be EEE biccs dicnescs cdavccsnccaseyaccsievenesetcces 23

Economou v. Economou, 399 A.2d 496 (Vt. 1979).............. 9

Martinez Moll v. Levitt & Sons of Puerto Rico, Inc.,

ee ce ee rs TD hin ans cosicvcakiabodessndustescassvvedeascucds 22

Okemo Mountain, Inc. v. Sikorskt,

2006 WL 3333100 (D.Vt. Nov. 16, 2006).................... 1, 26

Okemo Mountain, Inc. v. Sikorski,

303 Fed.App’x. 938 (2d Cir., Dec. 19, 2008)......... 1, 310, ig

Okemo Mountain, Inc. v. United States Sporting

Clays Association, 376 F.3d 102 (2d Cir. 2004) ...... passim

Ruyle v. Continental Oil Co..,

ee Fae ee Cr re Re ov vinci nndekeneacadendaveccbavesunctius 16

Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,

Se ee ee I ven osiccds fata dan <sassh ensenccs eestor eerie 15

CONSTITUTIONAL PROVISIONS

United States Constitution, amend. V ......................cceeeeeee

United States Constitution, amend. VI1..........................24.

STATUTES

28 U.S.C. § 1254(1)

RULES

Federal Rule of Civil Procedure 50

U.S. Supreme Court Rule 10(a)

OTHER AUTHORITIES

Code of Conduct for United States Judges

es Wh UIE Ey, os ac ack gaa veuican cada saeanie Eke uae 21

9B Charles Allen Wright & Arthur R. Miller

Federal Practice and Procedure § 2521 (3d ed. 2008) ...14

9B Charles Allen Wright & Arthur R. Miller

Federal Practice and Procedure § 2522 (3d ed. 2008) ...13

]

OPINIONS BELOW

Okemo Mountain, Inc. v. Sikorski, 72 Fed.R.Serv.3d 539,

303 Fed.App’x. 938, (2d Cir., Dec 19, 2008) (Summary

Order). Copy at Petition Appendix (“Pet. App.”) 40a.

Okemo Mountain, Inc. v. Stkorski, 2006 WL 3333100 (D.Vt.

Nov 16, 2006). Copy at Pet. App. 20a.

Okemo Mountain, Inc. v. U.S. Sporting Clays Ass'n, 376

F.3d 102 (2d Cir. 2004.). Copy at Pet. App. 2a.

+

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals

for the Second Circuit, affirming in part, reversing in part,

remanding in part, vacating in part and dismissing in part

the decision of the district court, was handed down on

December 19, 2008. Pet. App. 40a. A timely petition for

rehearing was denied on March 17, 2009. Pet. App. 47a.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

U.S. Const., amend. V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just

compensation.

U.S. Const., amend. VII.

In Suits at common law, where the valuc in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise

reexamined in any Court of the United

States, than according to the rules of the

common law

Fed. R. Civ. P. 50

(a) JUDGMENT AS A MATTER OF LAW.

(1) In General. If a party has been

fully heard on an issue during a jury trial

and the court finds that a reasonable jury

would not have a _ legally — sufficient

evidentiary basis to find for the party on that

issue, the court may:

(A) resolve the issue against the

party; and

(B) grant a motion for judgment

as a matter of law against the party on a

claim or defense that, under the controlling

law, can be maintained or defeated only with

a favorable finding on that issue.

(2) Motion. A motion for judgment as

a matter of law may be made at any time

before the case is submitted to the jury. The

motion must specify the judgment sought

and the law and facts that entitle the movant

to the judgment.

(b) RENEWING THE MOTION AFTER

TRIAL; ALTERNATIVE MOTION FOR A

NEW TRIAL. If the court does not grant a

motion for judgment as a matter of law made

under Rule 50(a), the court is considered to

have submitted the action to the jury subject

to the court's later deciding the legal

questions raised by the motion. No later

than 10 days after the entry of judgment — or

if the motion addresses a jury issue not

decided by a verdict, no later than 10 days

after the jury was discharged — the movant

may file a renewed motion for judgment as a

matter of law and may include an alternative

or joint request for a new trial under Rule

4

59. In ruling on the renewed motion, the

court may:

(1) allow judgment on the verdict, if

the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a

matter of law.

(c) GRANTING THE RENEWED

MOTION: CONDITIONAL RULING ON A

MOTION FOR A NEW TRIAL

(1) In General. If the court grants a

renewed motion for judgment as a matter of

law, it must also conditionally rule on any

motion for a new trial by determining

whether a new trial should be granted if the

judgment is later vacated or reversed. The

court must state the rrounds for

conditionally granting or denying the motion

for a new trial.

(2) Effect of a Conditional Ruling.

Conditionally granting the motion for a new

trial does not affect the judgment’s finality; if

the judgment is reversed, the new trial must

proceed unless the appellate court orders

otherwise. If the motion for a new trial is

conditionally denied, the appellee may assert

error in that denial; if the judgment 1s

reversed, the case must proceed as the

appellate court orders.

(d) TIME FOR A LOSING PARTY'S NEW-.-

TRIAL MOTION. Any motion for a new trial

under Rule 59 by a party against whom

judgment as a matter of law is rendered

must be filed no later than 10 days after the

entry of the judgment.

(e) DENYING THE MOTION’ FOR

JUDGMENT AS A MATTER OF LAW

REVERSAL ON APPEAL If the court

_

denies the motion for judgment as a matter

of law, the prevailing party may, as appellee,

assert grounds entitling it to a new trial

should the appellate court conclude that the

trial court erred in denying the motion. If

the appellate court reverses the judgment, it

may order a new trial, direct the trial court

to determine whether a new trial should be

granted, or direct the entry of judgment

6

STATEMENT

This appeal concerns the extent to which Rule 50

may be used to abrogate a party’s constitutional right to a

jury trial. Specifically, may a judge use Rule 50 to enter

judgment contrary to a verdict based on a lack of evidence

to support a modified version of the question the jury was

charged with answering?

This case required a jury to determine whether

parties to a General Release intended to release Petitioner

Patrick J. Sikorski (“Sikorski”) from a claim asserted by

Respondent Okemo Mountain, Inc. (“Okemo”) alleging Mr.

Sikorski was liable to Okemo both as an agent and

‘ndividually.” Specifically, the jury was asked to answer

this question

Considering all the facts and circumstances

surrounding its execution, do you find that

the February 23, 1995 General Release! was

intended to release the fraudulent

inducement claim by Okemo against Mr

Sikorski?

Pet. App. 52a. Unanimously, the jury answered

this question

Okemo moved for judgment under Rule 50 claiming

there was insufficient evidence to support the verdict on

this question. The district court granted Okemo’s Rule 50

motion for judgment (Pet. App. 20a), and the court of

appeals affirmed (Pet. App. 40a). However, both courts

4

/

evaluated a different question than the one presented to

the jury for determination. As the court of appeals stated:

The claims on which the district court

granted Okemo’s Rule 50(b) motions were

each premised upon the jury's finding that

the release in fact covered the fraudulent

inducement claim against Stkorski

individually. Because we agree with the

district court that the evidence fails as a

matter of law to support this interpretation

of the release, we affirm the district court’s

decision to grant these motions.

Pet. App. 44a (emphasis added). See also the district

court’s decision at Pet. App. 25a-29a.

The jury made no such finding, nor was it asked to

make such a finding.

Entering judgment under Rule 50 based on a lack of

evidence to support a question never put to the jury

deprived Mr. Sikorski, and would deprive any litigant, of

his constitutional rights to a jury trial and to procedural

and substantive due process of law on both the issue that

was tried and the issue that was not tried, but on which

judgment entered. The reviewing court’s usurpation of the

jury verdict based on an evaluation of the sufficiency of

evidence supporting a question never put to the jury

violates every concept of due process and fairness and

impugns the integrity of our judiciary.

This case originated in 1992 when Mr. Sikorski was

sued in diversity in the District of Vermont by Okemo.

Okemo alleged that in his simultaneous, dual legal capacity

as an individual and as an agent of his principal and co-

defendant, the United States Sporting Clay’s Association

(““USSCA”), Mr. Sikorski had defrauded Okemo by

8

misrepresenting his ability to promote and organize a

sporting event.

Three weeks before trial of the fraudulent

inducement claim, Okemo settled with USCCA and

executed a General Release. Pet. App. 49a. In material

part, the instrument purported to release "officers, agents,

{[and];employees [of USSCA] ... of and from all, and all

manner of action and actions, cause and causes of action,

suits, debts, dues, sums of money, controversies,

agreements, promises, ..., damages, judgments,..., claims

and demands whatsoever.” Okemo Mountain, Inc. ov.

United States Sporting Clay’s Ass’n., 376 F.3d 102, 104 (2d

Cir. 2004) and Pet. App. 3a (quoting the General Release

Pet. App. °49a).

A copy of the release “was not furnished to the

district court after settlement, nor was it furnished to

Sikorski . ...” Okemo, 376 F.3d at 104. Sikorski

represented himself at a bench trial and the district court

found that Sikorski, acting individually, was liable and

entered judgment against him in 1995 on Okemo’s claim of

fraudulent inducement (the “1995 Judgment’).

Eight years passed. Having failed to collect the 1995

Judgment, in 2003 Okemo petitioned the district court to

renew the 1995 Judgment for another eight years. At that

time, Sikorski first uncovered the release and moved for

summary judgment claiming he was covered by the release.

Okemo cross moved claiming he was not covered by the

release. The district court entered summary judgment in

favor of Okemo holding that the terms of the release were

not ambiguous and did not release Sikorski from the 1995

Judgment. Sikorski appeaied to the Court of Appeals for

the Second Circuit (the “2004 Appeal”)

[In the 2004 Appeal, all three members of the panel

agreed that the summary judgment in Okemo’s favor was

9

in error. A two judge majority reversed the district court

ruling that the release was ambiguous as a matter of law

and remanded stating: “a trial is necessary to consider

‘what was within the contemplation of the parties when the

release was executed, which in turn is to be resolved in the

light of the surrounding facts and circumstances under

which the parties acted.” Okemo, 376 F.3d at 104-105

(quoting Economou v. Economou, 399 A.2d 496, 500 (Vt.

1979)) and Pet. App. 5a.

In his dissenting opinion, now Chief Judge Jacobs

argued that the release unambiguously released Mr.

Sikorski from the claims asserted by Okemo’s fraudulent

inducement claim and stated he would have entered

judgment for Sikorski as a matter of luw. Okemo

Mountain, Inc., 376 F.3d at 106-112 and Pet. App. 7a.

Judge Jacobs argued that “the release here is wholly

unambiguous as to any person who was in the enumerated

category of USSCA agent as to any claim by Okemo arising

out of the failed clay-shooting tournament.” Jd. at 109 and

Pet. App. 15a. As he pointed out,

lawyers for parties in litigation should be

able to rely upon a general release to avoid

embroilment in htigation on matters arising

from the underlying transactions. Unless a

release categorically releases all persons

classifiable as releasees (in whatever

capacity) as to the underlying controversies,

the buyer of the release has purchased little

of value.

Id. at 110 and Pet. App. 15a. With these opinions in mind,

the litigants and the district court took up the case again.

At the trial on remand, during the charge conference,

the parties and the district court engaged in extensive

debate about precisely how to phrase the release question

10

to the jury in light of the appeal court’s decision. The

debate covered twenty-four pages of transcript and, by

Sikorski’s count, over fourteen different iterations of the

question were propounded, discussed and refined. The

specific question to be propounded to the jury on the jury

verdict form and the associated jury instructions that the

jury would use to answer that question were important to

the litigants and the district court. Getting the jury

question right was critical because, as the court of appeals

acknowledged, nearly every other issue to be decided by the

jury was “premised upon the jury’s finding that the release

in fact covered the fraudulent inducement claim... . 4

Okemo Mountain, Inc. v. Sikorski, 303 Fed App’x 938, 940

(2d Cir. Dec. 19, 2008) and Pet. App. at 44a.

Not once during that entire debate, or the trial for

that matter, did the district court, Okemo or Sikorski

propose framing the question to the jury in the form later

evaluated by the district court and the 2008 Appeal panel

under Rule 50; that is, whether the release in fact covered

the fraudulent inducement claim against Sikorski

individually.

In the end, it was Okemo’s counsel who proposed the

language used by the district court on the jury verdict form

and on which the district court instructed the jury. It was

that question which the jury decided. Pet. App. at 52a.

When prese iting the question proposed by Okemo to

the jury, the district court provided no legal instruction to

the jury on the meaning of “individual liability” or what

would be required as a matter of law for them to find that

the release “covered Okemo’s fraudulent inducement claim

against Sikorski individually.” Mr. Sikorski did not request

> The 2008 Appeal panel also tacked the following words on the end of

this quote, “against Sikorsk: individually Okemo, 303 Fed Appx at

j ; Pp}

940 and Pet. App. 44a. The jury made no such finding.

1]

any such instruction or object to the lack of any such

instruction because determining whether there was a

specific intent to release him from “individual liability” was

not the issue the parties or the district court asked the jury

to decide.

At the close of Sikorski’s evidence, Okemo moved for

judgment as a matter of law claiming Sikorski failed to

present sufficient evidence on the release issue. At that

time, neither Okemo nor the district court articulated any

need for or lack of proof of a release from “individual

liability.” Accordingly, while Sikorski objected to Okemo’s

Rule 50 motion, he made no effort to present any additional

evidence to prove the release covered him “individually.”

Instead, he relied on the evidence he had already

presented. Okemo’s Rule 50 motion was denied.

Later, at the close of all the evidence, Okemo

renewed its Rule 50 motion. Again, neither Okemo argued

nor the district court articulated any failure on Sikorski’s

part to prove any intent on the part of the releasors to

release him in his specific capacity as an “individual.”

Accordingly, while Sikorski objected to the Rule 50 motion,

he made no effort to submit any additional evidence

directed to that issue. It was not the question that Okemo

proposed or the question the court said it would put to the

jury. Again, Okemo’s Rule 50 motion was denied.

The parties then delivered closing arguments.

However, because it was not the issue that the jury was to

be charged with answering, Sikorski did not attempt to

persuade the jury that the releasors had any specific intent

to release him “individually.”

The district court then instructed the jury on the

law. The court provided no instruction to the jury on what

would be required to prove the releasors intended to release

Mr. Sikorski “individually” nor was there any instruction

12

on what it might mean to be “individually liable” or to act

in an “individual capacity” as compared to an “agency

capacity.” There was no legal instruction on any distinction

between “agency” and “individual” lability.4 And, Mr.

Sikorski did not request any such instruction or object to

the lack of such instruction because the question to be

posed to the jury on the jury verdict form did not require

the jury to make such legal distinctions from the facts.

After deliberation, the jury rendered its verdict

answering the question that was presented to it, and

unanimously finding that the release was intended to

release Sikorski from Okemo’s fraudulent inducement

claim prior to the 1995 trial and resulting judgment. Pet.

App. 52a.

After the verdict was returned, Okemo renewed its

Rule 50 motion for judgment as a matter of law. Thirty-two

weeks later, the district court changed the question that it

had presented to the jury, measured the evidence presented

at trial against the altered question, weighed the strength

of evidence and assessed the credibility of witnesses against

the modified question and then entered judgment as a

matter of law in favor of Okemo on the revised issue and

other derivative jury findings. Pet. App. 20a. The end

result was a mirror image of the district court’s original

view of the facts in favor of Okemo two years earlier on

summary judgment “concluding that Okemo’s intent had

been to release agents acting within the scope of agency,

but not Sikorski, who also acted individually.” Pet. App.

22a. However, that was the precise conclusion on which

the district court had been reversed on appeal in 2004.

Cross-appeals followed.

‘There was limited instruction on the difference between “personal”

and “agency hability

13

On appeal, the Second Circuit followed the district

court’s lead and it issued a Summary Order on December

19, 2008 concluding that the “release did not cover the

fraudulent inducement action brought against Sikorski in

his individual capacity.” Okemo, 303 Fed. App’x at 940 and

Pet. App. 43a and 44a. Nothing in the appeal court’s order

even acknowledges the actual question presented to and

decided by the jury.

Mr. Sikorski’ »etition for panel and en banc

rehearing was denied on March 17, 2009. Pet. App. 47a.

REASONS FOR GRANTING THE PETITION

Soon after Rule 50 was adopted in 1938, there was

concern that it might be misused by judges who favored an

outcome in their cases that was contrary to a jury’s verdict

and, thus, deprive litigants of their constitutional right to a

jury trial. See generally, 9B Charles Allen Wright & Arthur

R. Miller Federal Practice and Procedure § 2522 (3d ed.

2008). This Court quickly reassured the public that Rule

50(b) “has not taken away from juries and given to judges

any part of the exclusive power of juries to weigh evidence

and determine contested issues of fact — a jury being the

constitutional tribunal provided for trying facts in courts of

law.” Berry v. United States, 312 U.S. 450, 453 (1941).

When the Rule was amended in 1991, similar

concerns were raised and the Rules Advisory Committee

responded by saying that

‘action taken under the rule * * * is not an

intrusion on any responsibility for factual

determinations conferred on the jury by the

Seventh Amendment or any other provision

of federal law, and _ stresse[d] that the

revision ‘aims to facilitate the exercise by the

court of its responsibility to assure the

14

fidelity of its judgment to the controlling law.

a responsibility imposed by the Due Process

Clause of the Fifth Amendment.’

9B Charles Allen Wright & Arthur R. Miller Federal

Practice and Procedure § 2521 n.18 (3d ed. 2008) (quoting

Advisory Committee Note to the 1991 amendments).

Nevertheless, and despite these longstanding admonitions,

that is precisely what occurred here.

No evaluation or determination has ever been made

by any reviewing judge below that there was insufficient

evidence to support the question on which the jury

rendered its verdict. Instead, a determination has been

made that there was insufficient evidence to support a

verdict on a modified version of that question. By failing to

evaluate the evidence supporting the question actually

considered by the jury, the judges below deprived Mr.

Sikorski of his constitutional right to a jury trial and due

process of law.

To preserve constitutional rights and the public’s

trust in our judiciary, this Court should establish a bright

line rule prohibiting any court reviewing a jury verdict for

sufficiency of evidence under Rule 50 from amending,

modifying, altering or in any other way changing the

question presented for determination by the jury

A Bright Line Rule Is Required

Both reviewing courts below were to perform a de

novo review of the sufficiency of the evidence to support the

jury's verdict. However, while the text of Rule 50 appears

to require that the question to be considered on review

should be the same question decided by the jury, here both

reviewing courts apparently felt comfortable modifying the

jury question when performing their reviews. Such

modification should not be permitted. This Petition should

15

be granted so that this Court can establish a bright line

rule clarifying that any such modification, however slight,

is prohibited. A bright line rule will preserve constitutional

due process and jury trial rights and the integrity of our

courts.

This Court recently had occasion to revisit Rule 50

and the procedural safeguards that allow a court to ensure

that the evidence at trial is sufficient to sustain a verdict

while preserving a litigant’s right to a jury trial. Unitherm

Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394

(2006). Unitherm clarified a bright line procedural! rule

establishing exactly what litigants must do to preserve the

right to appeal Rule 50 decisions. Unitherm, 546 U.S. at

402-407. This case calls for a similar clarification of Rule

50 that rejects any approach that provokes hair-splitting

arguments concerning whether, under Rule 50, a particular

judge did or did not review the same question presented to

a jury. A reviewing judge should have no discretion to

modify, alter or in any other way change the question the

jury decided. Any Rule 50 review of the sufficiency of

evidence to support any jury verdict should be directed to

the precise question the jury was charged with answering.

Permitting any leeway to make such modifications would

too far intrude upon the safeguards needed to protect a

party's right to a jury trial from the improper application of

Rule 50 and would create multiple opportunities for such

intrusion.

Anything but a bright line rule that allows any

exercise of discretion by the reviewing court to modify the

jury question during a Rule 50 evaluation leads to a

scenario in which a jury might be charged with answering

question A, but the court’s Rule 50 analysis may involve

looking at questions B,C or D or any other question along

the continuum of possibilities. For example, a Rule 50

analysis may be performed (1) at the conclusion of the

plaintiffs evidence, (2) at the conclusion of all the evidence,

16

(3) within 10 days of judgment after a verdict is rendered

and (4) upon appeal. If judges were permitted to make

even the slightest modification to the jury question when

performing such reviews, it would be possible to end up

with five different iterations of the question by the time the

case were decided on appeal. In that case, by what

measure or standard would any modification of the jury

issue be permitted? How would a reviewing court know

how far it can or may go in changing the question? Would

it be proper for an appellate court to review the question

analyzed by the district court, the jury or its own unique

formulation? How would any judge determine whether a

change is minor or major or evaluate how any change might

have impacted the jury trial itself?

A system without a bright line rule would be

perverse and inefficient for, if the jury question were

subject to change as each reviewing court saw fit, the utility

of the due process protections of Rule 50 as a check on

improper jury verdicts would evaporate. Rule 50 reviews

must be focused on the precise issue the jury faced with

absolutely no discretion on the court’s part to modify the

question.

Such a bright line rule would not, of course,

eliminate the already existing safeguards necessary to

ensure that the proper question was presented to the jury

in first instance. The purpose of Rule 50 is to challenge the

sufficiency of the evidence, rather than the correctness of

questions of law; questions of law may be raised on appeal

with or without a prior Rule 50 motion. Ruyle ov.

Continental Oil Co., 44 F.3d 837, 841 (10% Cir. 1994),

certiorart den., 516 U.S. 906. At any number of times

during the trial, and especially after the delivery of jury

instructions, the litigants have the right and the duty to

advocate for any necessary modification of the jury issues

And, on appeal, if rights below were properly preserved, the

propricty of the question presented to the jury may be

17

challenged. Those rights, however, should not be confused

with the rights, procedures and analysis of Rule 50 reviews

because Rule 50 does not ask whether the proper question

was put to jury, but only whether the evidence at trial

supported jury’s verdict on the question that was put to the

jury. An adoption of any other rule would hinder the just

and efficient operation of the federal courts by degrading

the consistent and predictable application of the rules of

procedure.

Finally, 1f a case proceeds to a de novo Rule 50

review by a court of appeals, and the court of appeals issues

a decision that modifies the jury question in any way, the

losing party effectively has no where to turn for appellate

review. Certainly, the courts of appeal are understandably

loath to hear re-argument of already decided cases and, it

should not be this Court’s function to evaluate on an

ongoing basis whether appellate courts have gone too far in

changing the questions presented to juries when conducting

their Rule 50 analyses. As occurred in this case, in its de

novo review, the appellate panel’s decision reported that it

considered a modified question, leaving Mr. Sikorski with

the rather daunting task (after a failed request for

rehearing) of persuading this Court hear to this appeal.

This is unsatisfactory. If a bright line rule were in place,

appellate (and district) courts would be constrained to toe

that line when performing their reviews under Rule 50. In

this case, the appellate court would have been required to

take a much more critical — albeit de novo — review of the

district court's Rule 50 analysis, and could not have

adopted the district court’s modification of the jury question

as its own.

18

For The Issue Raised By This Petition,

If the Questions Are Different, It Should

Make No Difference Which Question

Was “Better” or “Correct”

When considering Mr. Sikorski’s request for a bright

line rule, this Court may ask whether the question posed by

the reviewing courts below was a “better question” than the

question presented to the jury

If the Rule 50 question is different than the jury

question, whether one is “better” or “correct” by any

measure, should make no difference to this Court’s

evaluation of the constitutional question presented by this

Petition. The issue before this Court does not concern, and

we do not ask this Court to decide, whether the question

presented to the jury in this case was the “right” one.

Rather, the question before this Court in this Petition is

narrowly directed to the much more important conflict that

may arise in all jury cases between the power of the

judiciary to correct a clearly erroneous jury verdict while

simultaneously preserving the litigants’ right to a jury trial

Thus, this Petition presupposes that the jury question in

this case was properly phrased for this case and only asks

whether a reviewing court may vacate the jury’ work

under Rule 50 through a post-verdict analysis of evidence

measured against a different jury question. Any other

supposition would be false, for the question that was asked

of the jury was the question that was asked of the jury

Nothing can change that

> Certainly, Sikorski was satisfied with the qui

to the jury and Okemo, having suggested the que:

to complain. No party has ever challenged the pri

presented to the jury

19

Moreover, the “correctness” of the question presented

to the jury in this case is not something this Court needs to

address because: (1) the trial court was the proper entity to

make that determination on the day the jury was charged,

in light of the changed posture of the case® long after

receiving the case back from the Court of Appeals on

remand; (2) the “correctness” of the question was stipulated

to, indeed the question was framed, by Okemo and then

accepted by the district court with full knowledge of the

posture of the case at that time; and (3) Okemo never

challenged the jury question at issue, thus waiving any

claim now that it was not the “correct” question.

Accordingly, this Petition presumes that the question

put to the jury was the correct question and asks this Court

only whether as a matter of law, the reviewing court must

confine its evaluation of the sufficiency of the evidence to

the precise question that was presented to the jury in order

to preserve a litigant’s constitutional right to a jury trial?

Plainly, the answer must be yes. Failure to do so would

deprive any litigant of the rights and benefits of a jury trial

in several important ways

A post-verdict Rule 50 evaluation of a different

question than that presented to the jury

l Deprives the hitigants of the timely

opportunity to advocate for and, then, object to jury

instructions or a verdict form that address the new

question

2 Deprives the litigants of the opportunity at

trial to present evidence and closing argument to the jury

to support the new issue

© After the 2004 \ppeal, Mr. Sikorski asserted a number of atfhirmative

laims and defenses av ist ' 10 that changed th posture t the

Ast Pet App. 23a

tf)

3. Deprives the litigants of the opportunity at

trial to object to the introduction of evidence directed to an

issue that they will be unaware of until after the tmnal

concludes;

4. Deprives the litigants of the opportunity to

advocate or object to the need for additional legal

instructions to the jury that may be raised by questions

submitted to the court from the jury room during

deliberations;

5 Deprives the litigants of the _ timely

opportunity to make and/or respond to post-verdict motions

for judgment pursuant to Rule 50 on the new issue created

by the court long after the jury has been dismissed

In short, changing the jury question after the trial is

over and the jury has gone home is tantamount to a “bait

and switch” in the commercial world. It wholly deprives all

litigants in a case of their constitutional right to a jury trial

on the questions that were tried and the attendant and

necessary due process of law It blinds litigants during

trial, leaving them to guess at what issues they should be

addressing and preserving during trial and to wonder what

they may confront post-verdict. It deprives the jury of its

role and function Changing, modifying or altering the

question after the fact should not be permitted in any jury

trial. If a Rule 50 analysis is to be performed, it must be

performed on the specific and precise question that was

presented to the jury

In this particular case, because the revised question

evaluated by the judges was materially different than that

presented to and decided by the jury, most of the “horribles

listed above actually came directly to bear on Mr. Sikorski

They are not theoretical!

21

First, the trial judge's’ post-verdict repeated

qualification of the jury question by inserting the term “in

his individual capacity” into the question, deprived Mr.

Sikorski of the right and opportunity to present and/or

object to evidence during trial that would have clarified his

position concerning that term and its potential applicability

to the dispute. If he had known the precise post-verdict

issue that would be evaluated for sufficiency of evidence,

Mr. Sikorski could very well have presented additional

evidence at trial to show that the parties to the release

specifically intended to release him “individually.”

Second, as the Court of Appeals made clear in the

2004 Appeal, the trial was to be about the intended

meaning of the release which was, in turn, to be determined

by the evidence of the parties’ actions and statements at the

time of its execution. Yet, the term “individually” does not

even appear in the text of the General Release itself. If the

trial court had advised Mr. Sikorski that the jury would be

charged with deciding whether the releasors had a specific

intent to release him “individually,” he could have objected

to this burden and might have prevailed. He certainly

would have had an opportunity to ask for instructions of

law that would have informed the jury exactly what is

required as a matter of law to prove such specific intent. If

he did not prevail on his request for such instructions, he

would have been able to object and, thus, preserve his

objection for appeal. As it turned out, however, he was

deprived of all those rights and opportunities because the

question was changed and the change was only announced

in the trial court’s Rule 50 decision thirty-two weeks after

the verdict came down, long after the point when knowing

of the change might have made a difference

Third, the purpose of a Rule 50 motion is “to alert the

opposing party to the movant’s claim of insufficiency” of the

evidence “before the case goes to the jury, so that ithe]

opponent possibly may cure any deficiency in his case

oN,

should the motion have any merit.” Martinez Moll v. Levitt

& Sons of Puerto Rico, Inc., 583 F.2d 565, 569 (1st Cir.

1978). Mr. Sikorski was deprived of his right to

supplement his evidence after Okemo moved for judgment

as a matter of law, but before the jury retired, in order to

meet the question that was never presented to the jury.

Fourth, when the jury came back with questions for

the judge during their deliberations, Mr. Sikorski was

deprived of the opportunity to object to or advocate for a

response that would take into account the revised jury

issue not then before the jury. In this case, the jury did

come back with a question only thirty minutes after

beginning their deliberations asking: “Are we considering

the intent of the releases [sic] executors or the release

itself?” Clearly, the jury was concerned about how to

approach the principal issue in the case. If the jury had

been faced with the verdict form question as subsequently

modified by the Rule 50 reviewing judges, the question or

questions they asked may have been very different. We

will never know.

Finally, in this case, the trial court gave no legal

instruction as to how a juror should interpret the term

“individual liability” or distinguish between _ so-called

“agency liability” and “individual hability” or “individual

capacity” arising from precisely the same actions taken by

Mr. Sikorski. See E.R. Squibb & Sons, Inc. v. Lloyd’s &

Companies, 241 F.3d 154, 167 (2d Cir. 2001) (“The

instructions for a verdict form are reviewed de novo; we

find an instruction erroneous if it misleads the jury as to

the correct legal standard or does not adequately inform the

jury on the law.) (emphasis added) (internal quotations

omitted). Under the E.R. Squibb standard, the verdict

question as ultimately phrased by the reviewing judges

would have been erroneous because, at a minimum, it did

not adequately inform the jury on the legal meaning of the

terms.

Without instruction, how many lawyers, much less

jurors, could cogently explain or understand any distinction

between so-called simultaneous “agency” and “individual”

liability for the same individual based on the same acts and

seeking precisely the same damages-—to the penny? While it

may very well be that there is no such distinction, as Chief

Judge Jacobs pointed out in his dissent in the 2004 appeal,

Okemo Mountain, 376 F.3d at 110-112 and Pet. App. at

16a-19a, the Rule 50 reviewing judges obviously saw a

material distinction. Not only does the disparity in views

reflected in Judge Jacobs’ dissent illustrate the substantial

and material difference between the verdict question the

jury confronted and the question addressed by the Rule 50

reviewing judges, but it shows that legal instruction about

those differences would have been critical to obtaining a

just result in the case had the jury question been phrased

as the reviewing judges wished. The legal meaning of

words like “individual capacity,” “individual claims,” and

“individual liability” are not clear or intuitive. If the jury

had been presented with the revised question, it would

have been clear error to not instruct them accordingly.

Perhaps more important than the loss of procedural

safeguards and predictability in process for the litigants, is

that changing the jury question after the fact damages the

integrity of and the public’s faith in our jury trial system

and our judiciary because, even if results are well intended

by the court, changing the question after the fact with a

resulting outcome that reverses a jury’s verdict suggests

impropriety in violation of the Code of Conduct for United

States Judges. Code of Conduct for United States Judges

Canons 1 and 2. If jurors learn that their hard work was

superseded by a judge who decided a case based on an issue

they never were asked to consider, their dismay with the

entire process is predictable. Regardless of the good

intentions of the court to achieve a just outcome, anyone

24

involved in or knowledgeable about such a case may believe

the “fix was in” for the prevailing party.

Mr. Sikorski does not suggest any impropriety here

by any judge involved in this case, but oaly raises this point

to focus this Court’s attention on the potentially irreparable

damage to our justice system that this case and others like

it can present. Certainly, having won a hard fought trial

with a unanimous jury verdict, Mr. Sikorski’s faith in our

system was shattered when the _ reviewing judges

overturned that verdict based on an issue he never had a

chance to try. It may be that others, including opposing

counsel, their clients, their insurers, the press, members of

the local bar, the court’s staff and members of the

community who are aware of this case and its outcome have

a similar, but unexpressed, view. Here, the judges below so

far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s

supervisory power. U.S. Supreme Court Rule 10(a).

Il. The Two Questions Are Materially

Different From Each Other

Not only does Judge Jacob’s dissent establish the

significant difference in meaning that the inclusion of the

phrase “individual lability” would have made in the jury

question, but it is evident from their rulings that the

inclusion of that phrase was material to the reviewing

judges’ analyses. Evaluating the Rule 50 motion de novo,

both the Court of Appeals and the district court qualified

their Rule 50 decision with the term “individual capacity.”?

A plain reading of their decisions shows that to defeat

‘ During oral argument in the 2008 Appeal, Judge Livingston pointedly

asked Mr. Sikorski's counsel to identify the evidence that demonstrated

the releasor’s intent to release Mr. Sikorski “individually.” Counse!|

responded by pointing out that that was not the question the jury was

charged with answering

ao

Okemo’s Rule 50 motion, both the district court and the

Court of Appeals demanded that Mr. Sikorski identify

evidence presented at trial that established a specific intent

of the parties to the General Release to release Mr. Sikorski

in his “individual capacity.”®

The difference between the question the jury was

asked to decide and the question the district and appeals

courts analyzed was squarely presented by the district

court itself.

[T]he jury found the 1995 release was

intended to release Sikorski from Okemo’s

fraudulent inducement claim.... Therefore,

to grant Okemo’s motion on this issue, the

Court must determine whether... the only

conclusion the jury could have reached is

that Okemo and USSCA did not intend to

release Sikorski from the fraudulent

inducement claim against him in his

individual capacity.

Okemo Mountain, Inc. v. Sikorski, 2006 WL 333100 (D.Vt.

Nov. 16, 2006) and Pet. App. 25a (original footnotes and

emphasis omitted, emphasis added).

The jury question propounded by Okemo, adopted by

the district court, and actually answered by the jury

broadly asked only whether the General Release was

8 The district court and the 2008 Court of Appeals panel appear to have

gone further than allowed by Rule 50 and, in contravention of the 2004

Appeal decision that the release is ambiguous as a matter of law,

interpreted the release to ‘not cover the fraudulent inducement claim

against Sikorski in his individual capacity.” Pet. App. 43a. Rule 50,

however, only permits the reviewing court to reject a verdict for lack of

evidence. It does not permit the reviewing court to go further and, from

the evidence, make affirmative findings of fact on issues such as intent.

Changing the jury question opens the door to such improprieties

26

intended to release Mr. Sikorski from Okemo’s fraudulent

inducement claim, leaving it up to the jury to decide what

the claim consisted of and whether the release covered it.

While Okemo’'s complaint alleged a mixed claim of agency

and so called “individual” liability, the question posed to the

jury did not distinguish between these terms or require any

determination of any specific separate intent of the

releasors to release Mr. Sikorski either “individually” or in

his capacity as an “agent.” Instead, the question posed to

the jury fully permitted them to conclude that the releasor’s

intended to release Mr. Sikorski from Okemo’s mixed

fraudulent inducement claim in any and all capacities

simply because (a) the release was a general release, (b)

Mr. Sikorski fell within the class of USSCA agents covered

by the release and (c) the fraudulent inducement claim was

a cause of action “related” to Sikorski’s agency actions. In

2004, the court of appeals suggested this very conclusion

might be appropriate and Valid.

[Wle conclude that reasonable people could

differ about the effect of the release upon

Sikorski in his individual capacity for causes

of action arising from the failed USSCA

event for the following reasons: (1) Most

importantly, the release could not have been

more broadly drawn, but was silent about

whether the instrument more specifically

sought to release the class of agents from all

related causes of action (even in their

individual capacities) or whether the release

sought to release agents only in their agency

capacities[.]

27

Okemo, 376 F.3d at 105 and Pet. App. 5a.9

Finally, and perhaps the best measure of the

important distinction between the two questions is the fact

that both the district court and the Court of Appeals found

it necessary to qualify the question actually presented to

the jury with the term “individually” in every single

instance they referred to it in their analyses. Thus, the

opinions themselves demonstrate that the inserted

qualification was material to the courts’ analyses, otherwise

there would have been no point in making it.

CONCLUSION

This case should be reversed and remanded to the

court of appeals with direction to properly apply Rule 50 by

measuring the sufficiency of the evidence at trial against

the specific and particular question actually decided by the

jury. That task has never been performed by any judge. If

Okemo’s Rule 50 motion is then denied, the court of appeals

should reconsider all of its other rulings which depended

upon its erroneous evaluation of the release issue.

For the above and foregoing reasons, Petitioner

respectfully requests the issuance of a writ of certiorari to

the United States Court of Appeals for the Second Circuit.

9 Indeed, while rot material to the issue before this Court on this

Petition, this approach, approved by the Court of Appeals, is the one

largely pursued by Mr. Sikorski in his presentation at trial — and the

theory which may have won over the jury. Under that theory, no

specific intent to release Mr. Sikorski “individually” was required, just

proof of a broad intent to release, agency and “related causes of action.”

There was ample evidence of all of these factors.

Respectfully submitted,

R. Bradford Fawley

Counsel of Record

Downs Rachlin Martin PLLC

28 Vernon Street

Brattleboro, VT 05301

(802) 258-3070

Attorney for Petitioner

la

APPENDIX

2a

United States Court of Appeals,

Second Circuit.

OKEMO MOUNTAIN, INC., Plaintiff-Counter-Defendant

Appellee,

Vv.

UNITED STATES SPORTING CLAYS ASSOCIATION,

and Bob L. Davis, Defendants-Counter-

Claimants,

Patrick J. Sikorski, Defendant-Counter-Claimant-

Appellant, )

Overseas Services, Inc. d/b/a Expeditions, Defendant-

Counter-Claimant.

Docket No. 03-9247.

Argued June 10, 2004.

Decided July 16, 2004.

Before: WALKER, Chief Judge, JACOBS, Circuit Judge,

and STANCEDU, Judge. [FN*]

FN* The Honorable Timothy C. Stanceu, of the

United States Court of International Trade, sitting

by designation.

Judge JACOBS dissents in a separate opinion.

JOHN M. WALKER, JR., Chief Judge.

Defendant-counter-claimant-appellant Patrick

Sikorski ("Sikorski") appeals the judgment of the United

States District Court for the District of Vermont (J. Garvan

Murtha, District Judge ) granting summary judgment to

plaintiff-counter-defendant-appellee Okemo Mountain, Inc.

("Okemo") on Okemo's motion to renew a judgment against

Sikorski from 1995 and on Sikorski's motion pursuant to

Federal Rule of Civil Procedure 60(b)(5) for relief from the

judgment on the basis of newly-discovered terms of a

3a

release instrument used to settle the underlying lawsuit

against his co-defendant and principal, United States

Sporting Clays Association ("USSCA").! It is stipulated

that Vermont law applies to this dispute. Because Vermont

law requires that ambiguous releases be interpreted by a

fact-finder as a question of fact, and reasonable people

could differ as to the scope of the release at issue in this

case, summary judgment for Okemo as a matter of law was

not appropriate. Accordingly, we VACATE and REMAND

for further proceedings.

Okemo brought this action to renew a judgment that

was entered against Sikorski in 1995. Okemo had

originally sued, inter alios, Sikorski, USSCA, and USSCA's

president, Bob Davis, for a series of tort and contract claims

arising out of a failed clay shooting event. Sikorski was

originally sued both in his representative capacity as an

agent of USSCA and in his individual capacity. In the

course of settling the lawsuit with USSCA, Okemo entered

into release agreements with both Bob Davis and USSCA,

who were represented by different lawyers; Sikorski

represented himself in the underlying suit pro se. The

instrument signed by Okemo and USSCA purported to

release "officers, agents, [and] employees [of USSCA] ... of

and from ail, and all manner of action and actions, cause

and causes of action, suits, debts, dues, sums of money, ...,

controversies, agreements, promises, ..., damages,

judgments, ..., claims and demands whatsoever." After

releasing USSCA and its agents, Okemo proceeded to trial

against Sikorski on the claims against him in his individual

capacity. A copy of the release issued to USSCA and its

agents was not furnished to the district court after

settlement, nor was it furnished to Sikorski until 2003,

| Federal Rule of Civil Procedure 60(b)(5) enables a district court to

relieve a party “from a final judgment, order, or proceeding for the

following reason| | the judgment has been satisfied, released, or

discharged ...”

4a

when Okemo sought to renew its judgment. Okemo

concedes that the instrument released Sikorski in his

capacity as an agent. At issue is whether, under Vermont

law, the release can be construed to bar claims against

Sikorski in his individual capacity, since the underlying

judgment Okemo seeks to renew found Sikorski liable only

in his individual capacity.?

The district court held that the ‘nstrument could not

be construed as releasing Sikorski in his personal capacity,

principally relying upon Horizon Financial, F.A. v. Hansen,

791 F.Supp. 1561 (N.D.Ga.1992). The district court found

that Okemo's having abandoned the claims against

Sikorski in his agency capacity after entering into the

release was probative evidence that "strongly suggests"

that the intention of the release was narrow; accordingly,

the district court entered judgment for Okemo and renewed

its 1995 judgment, notwithstanding the discovery of the

releasc.

We review a district court's grant of summary

judgment de novo, Dallas Aerospace, Inc. v. CIS Air Corp.,

352 F.3d 775, 780 (2d Cir.2003), and a district court's

denial of a Rule 60(b) motion for an abuse of discretion,

Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724.

729 (2d Cir.1998). In sum, we read Vermont law to

command a different result from the one reached by the

district court. Vermont law plainly requires that when "the

scope of the release cannot be determined from the

language alone," and the "language of the document is

ambiguous and must be clarified by reference to external

evidence, construction becomes a question of fact

““An appeal from the denial of a motion for relief from judgment

{pursuant to Rule 60(b)] raises only the question of whether that

motion was properly disposed; it is not a vehicle for examining th

underlying judgment itself.” Cody, Inc. v. Town of Woodbury, 179 F.3d

52, 56 (2d Cir. 1999)

Sa

[and][t]herefore summary judgment on this issue [is] error.”

Inv. Props., Inc. v. Lyttle, 169 Vt. 487, 498, 739 A.2d 1222

(1999) (citing Hous. Vt. v. Goldsmith & Morris, 165 Vt. 428,

430, 685 A.2d 1086 (1996)). Accordingly, here, where the

language of the release is exceptionally broad but might

reasonably be construed more narrowly to release agents of

the principal only in their representative capacities, a trial

is necessary to consider "what was within the

contemplation of the parties when the release was

executed, which in turn is to be resolved in the light of the

surrounding facts and circumstances under which the

parties acted." Hconomou v. Economou, 136 Vt. 611, 619,

399 A.2d 496 (1979).

To be sure, the threshold maiter of the existence of

ambiguity in the release is itself a question of law. See

Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 577, 556 A.2d

81 (1988). A provision is ambiguous to the extent that

reasonable people could differ as to its interpretation. Jd.

And the surrounding facts in this case do not resolve the

ambiguity as a matter of law in either direction. On the

contrary, we conclude that reasonable people could differ

about the effect of the release upon Sikorski in his

individual capacity for causes of action arising from the

failed USSCA event for the following reasons: (1) Most

importantly, the release could not have been more broadly

drawn, but was silent about whether the instrument more

specifically sought to release the class of agents from all

related causes of action (even in their individual capacities)

or whether the release sought to release agents only in

their agency capacities; (2) The release included Sikorski's

name because his name was in the caption of the case, but

failed to mention him specifically elsewhere in the

instrument; (3) USSCA must have been negotiating to

benefit its agents and employees, who were ultimately

released by the instrument, but it is less clear whether

USSCA wanted to buy peace from every aspect of the

lawsuit beyond the potential of its own hability (including

6a

the benefit of not having its employees testify at any trial)

(4) Okemo did not disclose the terms of the release either to

the original district court at the time it settled or to

Sikorski until 2003, eight vears after the release was signed

and judgment was entered; and (5) Bob Davis's lawyer was

not aware that Okemo proceeded to trial against Sikorsk1-

he assumed Okemo settled with all parties through release

instruments.”

determine what was contemplated by the parties at the

Accordingly, a trial is warranted to

time the release was executed. See Economou, 136 Vt. at

619, 399 A.2d 496. As the Vermont Supreme Court wrote

in a related context ordering a trial on the terms of a

release, "it is important ... that the circumstances

surrounding the execution of the release be fully explored

before any decision is made about its legal effect as to

nonsigning partfies]." Smith v. Gainer, 153 Vt. 442, 450,

571 A.2d 70 (1990)

Finally, we note that the district court's reliance on

Horizon, which held a general release not to extend to

agents in their individual capacities, is misplaced. First,

Horizon applied Pennsylvania law, which holds that

releases are generally disfavored. Horizon, 791 F.Supp. at

1572. Second, Pennsylvania law, unlike Vermont law,

holds that "the intent to release a nonparty must be stated

with such particularity that it is beyond doubt

Unequivocal language is required to release a non-

signatory.” Jd. at 1570. Third, the release construed in

Horizon was drawn more narrowly than the one before us:

it expressly reserved other causes of action, so could more

easily be viewed as narrow. Id. at 1569-70. Accordingly

>It is also worth noting that both parties in this litigation believe that

the release instrument 1s textually unambiguous: yet each reads it as

warranting summary judgment in its favor. When each side reasonably

thinks a textual provision unambiguously favors its position, and those

positions are diametrically opposed, we feel comfortable treating that

disagreement as somewhat probative of ambiguity

Ja

Horizon is inapposite to the question of Vermont law

implicated in this case

CONCLUSION

For the reasons set forth above, the judgment of the

district court 1s hereby VACATED and REMANDED.

JACOBS, Circuit Judge, dissenting.

Back in 1993, Okemo filed suit in diversity "for a

series of tort and contract claims arising out of a failed clay

shooting event" (to use the summary phrase used in the

majority opinion), naming as defendants: United States

Sporting Clays Association ("USSCA"); Bob L. Davis, who

was president of USSCA; and Patrick J. Sikorski, who in

the only claim now relevant was identified variously as an

"agent" of USSCA, an "employee" of USSCA, and as a

person acting in his own interest. In the course of

litigation, USSCA paid an amount in settlement and

Okemo executed a general release running in favor of

USSCA as well as its agents, employees, attorneys, and so

on as usual. The case went to trial against Sikorski pro se,

and Okemo won a judgment that has gone uncollected (and

was partially discharged in bankruptcy). In the current

proceeding Okemo seeks to renew the judgment pursuant

to Vt. Stat. Ann. 12 § 506, and Sikorski invokes the release

(which he recently discovered).

The district court cited the Vermont rule that a

release 1s construed to reflect the intent of the parties as

ascertained from the surrounding circumstances, Okemo

Mountain, Inc. v. Sikorski, No. 1:93-cv-22 1, 4 (D.Vt. Oct.

23, 2003) (citing Economu v. Economu, 136 Vt. 611, 619,

399 A.2d 496 (1979)), and ruled that the release was not

intended to discharge Sikorski in his "individual" capacity

an intent supposedly evidenced by the surrounding

circumstance that Okemo pursued the claim against

8a

Sikorski to judgment post-release. Since it is undisputed

that the terms of the release were unknown to Sikorski (or

the court) and that USSCA did not know that Okemo

continued tc litigate against Sikorski, that ruling is

untenable. The majority remands for further findings on

the intent of the contracting parties to release Sikorski as

an "individual," t.e., other than as an agent, if (as the

majority erroneously supposes) the underlying judgment is

predicated on acts outside the scope of Sikorski's agency.

I respectfully dissent and would reverse because the

remand draws USSCA and Davis back into litigation and

thus disturbs the peace they bought eight years ago, and

because the majority's approach subverts the force and

effect of innumerable releases bought to settle disputes in

Vermont--and perhaps elsewhere. In my view, a standard-

form release of a defendant's agents and employees

unambiguously releases any person who was an agent or

employee of the settling defendant at least with respect to

any claim arising out of the transactions and events at

issue in the suit. This dissent undertakes to show: [1] that

the standard-form general release at issue released agents,

and that Sikorski was alleged to be USSCA's agent in the

cause of action that gives rise to the judgment up for

renewal; [2] that that must be enough to effect release

because otherwise the standard form fails in its principal]

purpose of granting peace; and [3] that it is error to limit

the scope of the release to agents who are selfless and

unerring.

I

Vermont law requires that civil awards be enforced,

renewed, or revived within eight years of the origina!

judgment. Vt. Stat. Ann. 12 § 506. Having failed to ollect

on its judgment from 1995 through 2003, Okemo brought

the underlying suit to renew pursuant to § 506. Virtually

all of the 1995 judgment ($424,000) was awarded on

Okemo's claim that Sikorski fraudulently induced the ski

resort to enter a joint venture with USSCA concerning the

9a

failed clay-shooting event. (The other claims litigated in

1995 are irrelevant to this appeal.4 The complaint in the

original suit, which was not amended, alleged passim that

Sikorski acted in tandem with USSCA and Davis as their

agent in connection with his successful inducement of

Okemo to participate in the clay-shooting-tournament joint

venture.®

4 Okemo went to trial against Sikorski on claims of fraudulent

inducement, double billing, and breach of a noncompete agreement.

The district court ruled for Sikorski on the double-billing claim and

awarded Okemo $50,000 on the contract claim. At oral argument on

appeal, Sikorski's counsel stated that the $50,000 judgment was

discharged in a personal bankruptcy proceeding; Okemo did not

dispute that assertion.

> Okemo's complaint alleged that "[o]n December 18, 1990

representatives of USSCA met with representatives of Okemo

Mountain in Ludlow, Vermont." Compl. { 9. Davis and Sikorski were

present when "USSCA through its agents and employees made

representations to Okemo that USSCA was a nationally recognized and

highly respected organization with vast experience in the sponsorship,

organization, and management of Sporting Clay tournaments and

outdoor expositions." Jd. 4 10. On or about January 17, 1991, "Okemo

and ... Davis, President of USSCA signed a ... Memo of Understanding

for the 1991 East Coast Game Fair and USSCA Open" which “would

mark the beginning of an exclusive long term relationship between the

USSCA and Okemo Mountain...." [d. {| 11. "The USSCA agreed to be

responsible for the general management, marketing and organization of

the Event." Jd. On February 11, 1991, "Okemo formed a Joint Venture

with USSCA" through an agreement that essentially formalized the

memo of understanding. /d. 4 12. "USSCA took primary responsibility

for setting the budget ... based on its representations that it had

significant experience" with clay shooting tournaments. /d. 4, 16. The

joint venture agreement further provided that "USSCA shall be Event

Manager of this Joint Venture and shall be responsible primarily for

the organization of the Event, securing sponsorships, soliciting

tournament participants, soliciting exhibitors, the marketing of the

Event, and the general management of the Event including the layout

and design of the tournament and exhibition" (emphasis omitted). Id. 4

21. "USSCA entered into a contractual relationship with ... Sikorsk:

and retained him as its employee and/or agent to assist USSCA in

carrying out the responsibilities of USSCA as Event Manager of the

1991 Game Fair." Jd. % 22

10a

The tournament was a fiasco and led to Okemo's tort

and contract actions against USSCA, Davis, and Sikorski.

Shortly before trial Okemo settled with USSCA and

Davis® and gave them releases drafted by Davis' lawyer,

Stacy Chapman, by which

[OKEMO] remised, released, and forever

discharged, and by these presents does ...

remise, release and forever discharge ...

[USSCA] its officers, agents, employees,

attorneys, successors and assigns, of amd

from all, and all manner of action and

actions, cause and causes of action, suits,

debts, dues, sums of money, accounts,

reckoning, bonds, bills, specialties,

covenants, contracts, controversies,

agreements, promises, variances, trespasses,

damages, judgments, extents, executions,

claims and demands whatsoever, in law or in

equity, which against the [USSCA], its

officers, agents, employees, attorneys,

successors and assigns, [Okemo] ever had,

now has or which its officers, agents,

employees, attorneys, successors and assigns

has or may have for, upon or by reason of any

matter, cause or thing whatsoever from the

beginning of the world to the day of the date

of these presents

In words and substance, this is what is understood

by lawvers and judges to be a standard-form release. As I

J

© The amount of the consideration Okemo received for the release 1:

entirely clear from the record, but its sufficiency 1s uncontested

lla

read it, Okemo released Sikorski categorically--i.e., because

he was an agent, as Okemo affirmatively allege \-- from any

"action" against him and any "controversy" in which he and

Okemo were then embroiled. In so many words, Okemo

released any "agent[ ]" of USSCA from any "suit[ ]" it "now

has .. bv reason of any[...]thing whatsoever."

The majority opinion recites that this instrument

"purported to release" USSCA and its agents from the tort

and coniract claims in the 1995 litigation, but did not

entitle Sikorski to summary judgment in the underlying

renewal action "because the district court found that

Okemo's having abandoned the claims against Sikorski in

his agency capacity after entering into the release was

probative evidence that 'strongly suggests' that the

intention of the release was narrow" (emphasis added).

Maj. Op. at 104. Thus the only circumstance relied upon to

show the intent of the contracting parties was Okemo's

unilateral conduct in the bench trial that commenced three

weeks after the release was executed. But the question is

whether Okemo could proceed to trial notwithstanding the

release; and it begs the question to say that it could

because it did. There is zero probative value to the

subsequent trial itself as evidence of the contractual intent

or understanding of USSCA, Davis, the court, or Sikorski:

Mr. Chapman (the lawyer who procured the release) was

unaware that Okemo went to trial against Sikorski; the

judge and Sikorski were not told the terms of the release

during the 1995 proceedings; and Sikorski, who was

appearing pro se, cannot be expected to have intuited the

likelhhood that the settling defendants would have

insulated their agents and employees as well. Sikorski first

learned the terms of the release last year.

II

In Vermont (as elsewhere) a release is a contract.

Economou, 136 Vt. at 619, 399 A.2d 496. Its scope "is

determined by the intention of the parties as expressed in

12a

the terms of the particular instrument considered in light of

all the facts and circumstances"--that is, "by a consideration

of what was within the contemplation of the parties when

the release was executed ..." Jd.; see also Leo v. Hillman,

164 Vt. 94, 104, 665 A.2d 572 (1995). An exculpatory

agreement (such as a release) is "construed strictly against

the parties relying on it,” but if its language is clear, "the

parties 'are bound by the common meaning of the words

which they chose to express the content of their

understanding.'" Douglass v. Skiing Standards, Inc., 142

Vt. 634, 636, 459 A.2d 97 (1983) (quoting Duke v. Duke, 140

Vt. 543, 546, 442 A.2d 460 (1982)). Ifa release is

ambiguous (as the majority opinion holds), then resolution

of the ambiguity is a question of fact to be decided on

evidence of the parties’ intent. Investment Props. Inc. v.

Lyttle, 169 Vt. 487, 498, 739 A.2d 1222 (1999).

The majority cites Vermont's application of these

principles in Smith v. Gainer, 153 Vt. 442, 571 A.2d 70

(1990), in which a release of Smith by Gainer for damages

arising out of an automobile accident was deemed

ambiguous with respect to a subsequent action by Smith

against Gainer for damages arising out of the same

accident. Id. at 447-48, 571 A.2d 70. Smith did ne’. address

the scope of a release with respect to agents, employees,

attorneys and other categories of persons discharged by a

releasee; indeed, the key question on remand was whether

the release granted in favor of Smith was negotiated by

Gainer's insurer. Jd. at 105-06, 571 A.2d 70.

164 Vt. 94, 665 A.2d 572 (1995). In 1979 one Malinosky

killed his former girlfriend and fled into hiding. Jd. at 96-

97, 665 A.2d 572. While he was at large, his in-state legal

counsel settled tort and other claims asserted by the

victim's sister, who signed a release discharging the killer

of civil hability. Jd. After Malinosky was apprehended, the

sister as administrator of the victim's estate, asserted tort

l3a

and survival claims against Dr. Donald Hillman, the

psychologist who treated Malinosky prior to the murder.

Id. at 97, 665 A.2d 572. The doctor's defense of release was

rejected by the Vermont Supreme Court:

There was nothing in the understanding

between Malinosky's representative and [the

sister] which indicated even the slightest

consciousness of [the doctor's] interests....

The motivation for the release, presumably

supported by adequate consideration,

appears to have been strictly bilateral.

There is nothing in the record to suggest that

[the doctor] w[as] aware of the negotiations

between Malinosky's representative and [the

sister] or that they sought to protect [his]

interests in connection with that settlement.

Id. at 104, 665 A.2d 572. Thus in Hillman, though the

underlying loss was the same, there was no reason to think

that the parties or their lawyers had in mind a category of

releasees that included Dr. Hillman. By the same token, if

the release had discharged "treating psychologists," I do not

think it could have been deemed ambiguous as to Dr.

Hillman, nor would a hearing have been required to

ascertain whether he was acting outside the scope of

professional norms, or whether he was acting as a (fee-

collecting) "individual"--as no doubt he was.’ Similarly, the

release here 1s wholly unambiguous as to any person who

was in the enumerated category of USSCA agent as to any

claim by Okemo arising out of the failed clay-shooting

tournament.

In considering the intention of the parties, it is

critical to keep in mind that a general release is bought to

The terms of the release are not set out in the opinion

l4a

secure peace as well as to settle pending or impending

claims. Such peace is (at the least) freedom from the risk,

trouble, and expense of litigation over the underlying

events--as a defendant, indemnitor, witness, or in any other

capacity. I know this because judges and lawyers know the

customs and practices of the profession and need consult no

expert to know the nature and intended effect of a standard

form so common as a general release. See generally Marx &

Co., Inc. v. Diner's Club, Inc., 550 F.2d 505, 512 (2d

Cir.1977).

The majority nevertheless holds that Sikorski may

still be on the hook because he was found liable "as an

individual" in 1995, and that a hearing is required to

ascertain whether USSCA's release discharged Sikorski for

actions taken "beyond the scope" of his authority as

USSCA's agent. Putting aside (until Section III) the

deficiencies in Okemo's theory of agency, the finding that

Sikorski defrauded Okemo as an "individual" has no

bearing on the force and effect of the release. Indeed, a

general release would lose an unpredictable part of its

effect if "employees" were released only insofar as the

wrongful conduct was within the authorized scope of the

employment or if "agents" were released only insofar as the

wrongful conduct was within the authorized scope of the

agency. That is because litigation could continue against

employees and agents who performed badly, whether by

reason of incompetence, addiction, or other incapacity, or by

negligence or failure of supervision, and because the post-

release litigation of these issues of authority would tend to

draw the principal releasee back into the controversy.

There would be the risk of indemnity for judgments, or of

attorneys’ fees incurred by the employee or agent; the risk

of third-party claims by them; the trouble of producing

documents and witnesses; attorneys’ fees in connection

with all these things; the time of officers and employees

distracted from business; continuing risk to reputation;

and so on

l5a

Moreover, a finding that Sikorski was pursuing

individual interests would not tend to support an inference

that he was no agent. Everyone in every role is an

individual as well, with individual interests: thus a broker

has an individual interest in his commission, and the

lawyer in her fee. Even so, lawyers for parties in litigation

should be able to rely upon a general release to avoid

embroilment in litigation on matters arising from the

underlying transactions. Unless a release categorically

releases all persons classifiable as releasees (in whatever

capacity) as to the underlying controversies, the buyer of

the release has purchased little of value.

This litigation is an example near to hand. USSCA

no doubt assumed eight years ago that it was released from

controversies over the clay-shooting tournament. On

remand, however, the district court will hold a hearing on

the scope of the release. USSCA may be subpoenaed to

furnish documents and witnesses. Davis and perhaps other

current and former USSCA employees may be required to

testify or submit affidavits--not only about the release

itself, but about the facts and circumstances of Okemo's

contract and tort claims and Sikorski's role in them. If

USSCA and Davis retain counsel to arrange compliance,

costs will be incurred. Mr. Chapman, counsel to Davis

eight years ago, may be called to testify, and Mr. Chapman

may look to someone to compensate him for his time.

Perhaps this expense, dislocation, and controversy

could be justified if there were an open fact question; but

there is none. The majority remands for fact-finding "to

determine what was contemplated by the parties at the

time the release was executed." Op. at 105. That sounds

like a fact issue if one seeks to know whether particular

parties intended at a point in time to release Sikorski from

liability as an individual. But the factual development will

inevitably follow another course altogether. Except insofar

l6a

as explicit reservations are added to a standard-form

general release (here there were none), the critical

boilerplate is not subject to close negotiation between

counsel or the parties; it is the product of generations of

lawyers using litigation-tested terms. For example, the

form at issue here releases "extents"; not one lawyer in a

thousand knows what the word means, yet no competent

lawyer would agree to cross it out; and no lawyer should

hesitate to claim its benefit as necessary if an adversary

attempted a maneuver analogous to such a writ. The only

necessary intent formed by a releasee who takes a

standard-form release is to buy peace--that is, a

suppression of controversy touching the releasee's interest

that is as thorough and complete as is customary. In this

case, that would entail the end of litigation concerning the

underlying controversy against anyone connected to

USSCA; but it would not require a specifically formed

intention as to particular acts by Sikorski or any other

individual within a class of releasees. Since all this is

already known and appreciated by lawyers and judges, it

seems to me error to elicit fact-finding on the subject.

II]

Even if the district court were to find on remand that

the parties to the release did not intend to discharge

USSCA's agents from liability for actions taken outside the

scope of their agency, Okemo would not be entitled to a

renewed judgment. Okemo concedes that Sikorski is

discharged from any liability for acts undertaken as an

agent of USSCA; it rests its argument on the 1995 finding

that Sikorski acted in an "individual" capacity when he

induced Okemo to enter the joint venture with the

Association in 1990- 91. In its brief and at oral argument,

Okemo characterized that finding--noted twice in the

district court's 1995 opinion--as establishing that, with

respect to the claims on which he was found hable, Sikorski

acted "beyond the scope of [his] agency relationship" with

the USSCA.

17a

But Okemo seeks renewal of a judgment on its claim

that Sikorski fraudulently induced Okemo to enter a joint

venture with USSCA. Among other things, that

inducement consisted of a meeting held December 18, 1990

at which (Okemo alleged) Sikorski acted "in [his]

representative capacity" and “individually.” Compl. { 119.

According to the district court's 1995 opinion, this (and

other evidence)

convincingly demonstrated that Sikorski,

acting individually, misrepresented his

experience and capabilities in the

management, promotion, budgeting and

financial oversight of Game Fairs and

similar outdoor events. In addition, Sikorski

made a specific factual representation as to

fa] sponsorship commitment of $50,000.

Okemo Mountain, Inc. v. Stkorski, No. 5: 93-CV-22

(D.Vt. May 10, 1995). But the fact that Sikorski made

misrepresentations does not amount to a finding that he

acted “beyond the scope of his agency.” It is hornbook law

that "[a] principal is subject to liability for loss caused to

another by the other's reliance upon a tortious

representation of a[n] ... agent, if the representation is: (a)

authorized; (b) apparently authorized; or (c) within the

power of the agent to make for the principal." Restatement

(Second) of Agency § 257 (1958). "If the statement is one

which, if true, the agent would be authorized or apparently

authorized to make, the principal is subject to liability for

it, although deceitfully made ..." Id. cmt. a. The rule is

longstanding; it means that a misrepresentation, even if

unauthorized, may nonetheless be "within the scope" of an

agent's authority to act on behalf of his principal. See, e.g.,

Hydrolevel Corp. v. American Soc. of Mechanical Engineers,

Inc., 635 F.2d 118, 125 (2d Cir.1980) (citing Gleason v.

Seaboard Air Line Co., 49 S.Ct. 161, 73 L.Ed. 415 (1929)).

18a

Okemo did not contend in 1995 that Sikorski was

without authority to act on behalf of USSCA in convincing

the resort to participate in the joint venture or in carrying

out the Association's duties as a party to it. Nor did the

district court make findings in 1995 to that effect. Okemo

now claims that after settling with Davis and USSCA in

1995, it went to trial against Sikorski only on the claims

made against him for actions taken outside the scope of his

agency. But the heart of Okemo's case (and the 1995

judgment) was fraudulent inducement, and all of the

misrepresentations relevant to that claim are alleged to

have been made by USSCA and by Davis and Sikorski as

agents and employees of the Association. None of Okemo's

allegations pertaining to fraudulent inducement assert that

Sikorski was acting on his own; he acted

(misrepresentations and all) to secure a location for a 1991

clay-shooting tournament and to produce the event--which

is what USSCA sought to do and was alleged to have done.

See supra n. 2; see, e.g., Town of Rutland v. City of

Rutland, 170 Vt. 87, 93-94, 743 A.2d 585 (1999) (rejecting

defendant's claim that his lawyer, who sought and obtained

approval for a public sewer, acted outside the scope of his

authority).

A misrepresentation made by an agent may breach

the agency agreement with an honest principal, but it does

not evidence or bespeak conduct "outside the scope" of the

agency. Indeed, principals remain liable for

misrepresentations by agents which "if true, the agent

would be authorized or apparently authorized to make."

Restatement (Second) of Agency § 257 cmt. a; see also

Town of Rutland, 170 Vt. at 93-94, 743 A.2d 585. This

applies to Sikorski's misrepresentations about sponsorship

prospects and his own experience in the tournament

business: would it make any sense to characterize those

representations as outside the scope of Sikorski's agency if

they had been true”

19a

In short, the district court did not find in 1995 that

Sikorski acted "beyond the scope" of his agency, because

(among other reasons) Okemo made no such claim in its

complaint, Okemo raised no extra-agency theory of liability,

and no such finding was germane to any issue presented to

the district court.

* ~ * a» a *

For the foregoing reasons, | respectfully dissent and would

reverse the decision of the district court.

20a

UNITED STATES DISTRICT COURT

DISTRICT OF VERMONT

OKEMO MOUNTAIN, INC..

Plaintiff and

Counter-Defendant.

File No. 1:93-CV-22

PATRICK J. SIKORSKI.

Defendant and

Counter-Claimant.

RULING ON POST-TRIAL MOTIONS

(Papers 251, 275, and 279)

Introduction

This case began as an action under 12 V.S.A. § 506

by plaintiff/counter-defendant Okemo Mountain, Inc.

(“Okemo’) to renew a judgment rendered in 1995 against

defendant/counter-claimant Patrick J. Sikorski (“Sikorski’),

but expanded when Sikorski filed various affirmative

defenses and counterclaims. The most recent twist in this

gordian litigation occurred at the conclusion of the April

2006 trial, when the jury found, among other things, that

Sikorski should be awarded compensatory damages against

Okemo in the amount of $650,000 based on findings of

fraud, fraudulent concealment, fraudulent

misrepresentation, abuse of process, and intentional

infliction of emotional distress (“IIED”). A flurry of post

trial motions ensued, including motions filed by intervenors

Richard Coutant and Salmon & Nostrand (“Intervenors”)

Upon careful review of the filings and trial record, the

Court rules as follows

2la

Okemo’s motion for judgment as a matter of

law is GRANTED as to the jury’s findings

concerning the release, fraud, estoppel

fraudulent concealment, fraudulent

misrepresentation, and abuse of process, and

DENIED as to the jury’s finding of ITED;

Intervenors’ motion for judgment as a matter

of law is construed as a memorandum, thereby

rendering the motion moot

Okemo’s and Intervenors’ alternative motions

for a new trial are GRANTED to the extent

that a new trial is necessary to determine the

appropriate amount of damages related to the

[LED finding; and

As an alternative to a new trial, Sikorski shall

have until December 15, 2006 to notify the

Court whether he agrees to remit that portion

of the jury award exceeding $250,000. Should

Sikorski refuse to make such remittitur, this

case shall be set for the January 2007 trial

calendar to determine the appropriate amount

of damages.

Further, it is hereby ORDERED that

Sikorski’s renewed motion for equitable relief

from the 1995 judyment is GRANTED:

Okemo’s request to renew the 1995 judgment

is DENIED;

The 1995 judgment is VACATED in full; and

22a

Okemo shall return any money collected thus

far from Sikorski in partial fulfillment of the

1995 judgment.

Background!

In 2003, Okemo brought this action to renew a 1995

judgment for approximately $450,000 rendered against

Sikorski.2 Paper 104. In response, Sikorski sought to

vacate the judgment under Fed. R. Civ. P. 60(b), arguing

that a general release entered into by Okemo and the

United States Sporting Clays Association (““USSCA”) in

1995 - - the text of which was not known to Sikorski until

May 2008 - - absolved him of all liability, or alternatively,

that extraordinary circumstances warranted granting

relief. Paper 110.

On October 23, 2003, this Court ruled in favor of

Okemo on cross motions for summary judgment, concluding

that Okemo’s intent had been to release agents acting

within the scope of agency, but not Sikorski, who also acted

individually. Paper 121. The Second Circuit Court of

1 The following factual recitation sets forth those facts necessary to

decide the pending matters. The interested reader is referred to the

various opinions and rulings previously made during the course of this

multi-chaptered dispute between Okemo and Sikorski. See, e.g.,

Okemo Mountain, Inc. v. U.S. Sporting Clays Ass'n, 376 F.3d 102 (2d

Cir. 2004).

2 Following a bench trial in 1995, Judge Billings found Sikorski, acting

individually, had fraudulently induced Okemo to host a game fair by

various misrepresentations, resulting in damages of $424,478.86; had

unjustly enriched himself by double billing the amount of $50,388, 55,

an amount included in the $424,478.86: and had obtained $25.000 by

intentionally violating a covenant not to compete. See Paper 96. Mr

Sikorski appealed, and the Second Circuit dismissed, subject to the

right to reinstate following conclusion of bankruptcy proceedings;

however, Sikorski did not timely reinstate his appeal. A Connecticut

bankruptcy court ruled that the 1995 judgment was nondischargeable

See In re Sikorski, 239 B.R. 661 (Bankr. D. Conn. 1999)

23a

Appeals subsequently vacated that ruling, explaining that

the issue to be determined upon remand was: “whether,

under Vermont law, the release can be construed to bar

claims against Sikorski in his individual capacity, since the

underlying judgment Okemo seeks to renew found Sikorski

liable only in his individual! capacity.” See Okemo, 376 F.3d

at 104. The Circuit further held that “a trial is warranted

to determine what was contemplated by the parties at the

time the release was executed”; specifically, whether the

agreement released Sikorski in his agency capacity only or

also in his individual capacity. Id. at 105.

Following remand, Sikorski filed an answer to

Okemo’s action to renew the judgment, asserting

affirmative defenses of release, estoppel, and fraud.

Sikorski also brought an independent action in equity

pursuant to Rule 60(b) alleging fraud, and counterclaims

for fraudulent misrepresentation, abuse of process, and

IIED.? Paper 128. Sikorski’s central assertion was that

Okemo and Mueller “misrepresented material facts to

Sikorski and to this Court by omitting any disclosure of the

General Release and the consideration paid by the other

defendants in that action that reduced damages, both prior

to the trial and for more than eight years thereafter.”

Paper 128 {| 28.

During the week of April 3-7, 2006, the Court held a

jury trial on all claims and reserved judgment on the

equitable determination to renew the judgment. Before the

> Sikorski additionally brought counterclaims for defamation, malicious

prosecution, and negligence, and various claims against third-party

defendant Timothy T. Mueller (‘Mueller’), president of Okemo. Paper

128. Prior to trial, the Court dismissed the defamation claim and

granted summary judgment to Okemo and Mueller on the malicious

prosecution claim. Paper 185. At the close of trial testimony, the Court

dismissed all claims avainst Mueller and granted judgment to Okemo

claim. Docket Entri 2A 254

24a

case was submitted to the jury, Sikorski renewed his

motion under Fed. R. Civ. P. 60(b) for equitable relief from

the 1995 judgment. Paper 251. Also at that time, Okemo

moved under Fed. R. Civ. P. 50(a) for judgment as a matter

of law. The Court denied Okemo’s motion. Docket Entry

253. Pursuant to the Court of Appeals’ mandate in Okemo,

the jury considered whether the 1995 release “was intended

to release the fraudulent inducement claim by Okemo

against Sikorski.” Paper 257. The jury also considered

whether Sikorski had proven that Okemo, through its

attorney Richard Coutant (“Coutant”), had committed fraud

upon the court; whether Okemo was estopped from

executing or renewing the 1995 judgment; and whether

Okemo was hable to Sikorski for fraudulent concealment,

fraudulent misrepresentation, abuse of process, and

intentional infliction of emotional distress. Paper 257. The

jury answered all questions in the affirmative and awarded

Sikorski $650,000 in compensatory damages for Okemo’s

wrongdoing, but no punitive damages. Paper 255.

Thereafter, the Court granted Coutant’s and Salmon

& Nostrand’s application to intervene, Papers 264, 276, and

the instant post-trial motions were filed.

IT Jiscussion

Okemo’s and Intervenors’

Motions for Judgment as a Matter of L:

(Papers 275, 279)

A motion for judgment as a matter of law should be

granted when “a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” Fed.

R. Civ. P. 50(a)(1). In other words, the Court must

determine whether, “viewed in the light most favorable to

the nonmoving party, the evidence is such that, without

weighing the credibility of witnesses or otherwise

25a

considering the weight of evidence, there can be but one

conclusion as to the verdict that reasonable [persons] could

have reached.” Indu Craft, Inc. v. Bank of Baroda, 47 F.3d

490, 494 (2d Cir. 1995) (internal quotation marks and

citations omitted).

A party may file a post-trial motion for judgment as a

matter of law only where, as in Okemo’s case, it has first

moved prior to submission of the case to the jury. Fed. R.

Civ. P. 50(b); Docket Entry 253. Because Intervenors did

not move for judgment as a matter of law under Rule 50(a)

before the case was submitted to the jury (since they had

not yet applied to intervene), the Court cannot construe

their motion as one under Rule 50(b). The Court therefore

construes their Rule 50(a) motion as a post-trial

memorandum addressing their interests in the case at this

time, as provided in the ruling on the application to

intervene. See Paper 276.

Jury finding concerning the

1995 release

At the conclusion of the April trial that followed the

Second Circuit’s remand, the jury found the 1995 release

was intended to release Sikorski from Okemo’'s fraudulent

inducement claim.4 Paper 255. Therefore, to grant

Okemo’s motion on this issue, the Court must determine

whether, viewing the evidence in the light most favorable to

Sikorski, the only conclusion the jury could have reached is

that Okemo and USSCA did not intend to release Sikorski

from the fraudulent inducement claim against him in his

individual capacity.

* The Court agreed to narrow the jury’s inquiry to whether Okem

intended to release Sikorski from the fraudulent inducement claim

Trnal Transcript (‘TT’) Day 4 at 265

Having exhaustively reviewed the parties’ filings and

the trial transcript, the Court concludes that no reasonable

jury could have decided that the release was intended to

cover the fraudulent inducement claim against Sikorski as

an individual. As a starting point, the consistent testimony

of Stacy Chapman (“Chapman”), who was the attorney for

USSCA president Bob Davis during the negotiation and

execution of the release, and Coutant, who was the attorney

for Okemo during the negotiation and execution of the

release, confirmed that their intent was not to release

Sikorski in his individual capacity on the fraudulent

inducement claim; an intent supported by the surrounding

circumstances:

¢ Chapman testified that shortly before the 1995 trial,

he alone negotiated with Coutant for the settlement

of all of Okemo’s claims against Davis for $55,000. To

protect Davis from being “dragged back into [the

litigation],’ Chapman also negotiated a settlement of

Okemo’s claims against USSCA in exchange for

assignment of a (worthless) promissory note, 1'T Day

3 at 14-15;

Chapman drafted both releases - - between Okemo

and Davis, and between Okemo and USSCA - - using

standard release forms and forwarded them to

Coutant on February 6 and 9, 1995. TT Day 3 at 14-

17, 25. Chapman testified that use of the word

“agents” in the USSCA release, although already “in

the form,” was to protect Davis as president or

USSCA, TT Day 3 at 25-26;

Chapman further testified that Coutant stated during

the release negotiations that Okemo still intended to

27a

pursue its claims against Sikorski.® Coutant lkewise

testified that he told Chapman during negotiations

that Okemo was going to pursue its claims against

Sikorski in his individual capacity. TT Day 2 at 80.

Chapman testified that his response was “what they

did against Mr. Sikorski really was none of my

business so long as I was assured that Mr. Davis was

[sic] not somehow be dragged back into the case,” TT

Day 3 at 10;

Coutant testified that “:t was Okemo’s intention, and

my intention, and my understanding with Mr.

Chapman, that this release did not apply to Mr.

Sikorski for actions which he undertook on his own

behalf as an individual not as an agent for USSCA,”

TT Day 1 at 45-46;

Okemo proceeded to trial against Sikorski on the

fraudulent inducement, double billing, and breach of

covenant not to compete claims;

Sikorski testified that, through contemporaneous

conversations with Davis, he was aware of the

settlement negotiations between Okemo and Davis,

as well as Davis’ and USSCA’s payments to Okemo,

but he did not participate in the discussions and did

not seek discovery regarding the settlement. TT Day

4 at 45-53.°

> Notabiy, this testimony clarifies a fact issue at odds with the Court of

Appeals’ finding in Okemo that Chapman “was not aware that Okemo

proceeded to trial aganist Sikorski - - he assumed Okemo settled with

all parties through release instruments.” 376 F.3d at 105; see also TT

Day 4 at 178-79

© In addition to this testimony, it is important to note that at trial

Sikorski went to great lengths to show that Mueller and Okemo had a

persona! vendetta against him and hatched a plan to pursue him no

matter what. If so, it would be surprising for them to so easily abandon

28a

Nevertheless, it was entirely within the province of the jury

to disbelieve certain witness testimony. But in order to do

so and reach the conclusions the jury did, there must at

least be some evidence to find that the parties intended to

release Sikorski individually. To meet his burden’ at trial

in the face of the consistent testimony of those involved in

negotiating and signing the release, Sikorski’s counsel,

Bradford Fawley (“Fawley”), attempted to show that before

the release was signed, the fraudulent inducement claim

was only pled and intended to be pled against Sikorski as

an agent of USSCA, not based upon any individual actions

of Sikorski. Further, Fawley’s prevailing theory at trial

challenged Judge Billings’ decision by arguing that all

damages were caused by Sikorski while Sikorski was acting

as USSCA’s agent. For instance:

in his opening, Fawley stated: ‘We will prove that

those alleged fraudulent acts were taken by Sikorski

as agent of USSCA and, in fact, Okemo has admitted

that,” TT Day 1 at 38;

in his opening, Fawley also stated that the 1995 case

was “based on the very same acts, we will show, that

he committed as agent for which they had just

released him,” TT Day 1 at 39;

in his closing, Fawley alluded to the absence of

individual actions by Sikorski by stating: “I can’t

remember a specific action Mr. Sikorski took as an

individual.” TT Day 5 at 39.

their claims against Sikorski 1n his individual capacity by including

him in the release for a relatively neglhgible sum

? At all times it was Sikorski’s burden to show by a preponderance of

the evidence that he was included within the class of persons released

See Paper 257 at 12

29a

So, in reaching its conclusions, the jury necessarily relied

on Fawley’s presentation that the fraudulent inducement

claim was not pled or intended to be pled as a claim against

Sikorski in his individual capacity and potentially revisited

Judge Billings’ 1995 final judgment that Sikorski was liable

for this claim in his individual capacity.

There are two primary reasons why these

conclusions could not be reached by reasonable persons.

For one, these findings completely ignore the undisputed

fact that the portion of Okemo’s 1993 complaint pertaining

to the fraudulent inducement claim unequivocally stated:

“As the direct and proximate result of the wrongful conduct

of USSCA, Bob L. Davis, and Patrick J. Sikorski, each

individually and in their representative capacity, Okemo

has suffered substantial loss and damage.” Paper 1 § 119

(emphasis added). No later court filing narrowed the scope

of this Count, and as memorialized in Judge Billings’

decision and already found by this Court, although the case

against Sikorski was initially based on Sikorski’s actions as

an individual and as an agent of USSCA, after the

settlement with USSCA, the action proceeded to trial on

Sikorski’s behavior as an independent actor. The

somewhat confused (and confusing) testimony of what

Mueller may have understood or not understood about the

nuances of individual versus agency liability does not, even

when viewed in a light most favorable to Sikorski, change

the fact that the lawsuit was initiated, maintained, and

tried by Okemo against Sikorski in both his individual and

representative capacities. Further, there is absolutely zero

probative value to the fact that Okemo referred to Sikorski

as an agent of USSCA in pleadings with the Court prior to

the execution of the releases, considering that it is beyond

question that one of Okemo’s theories of liability against

> <

USSCA was premised upon agency law

Second, to the extent the jury may have been

influenced by Fawley’s argument that all of Sikorski’s

30a

actions surrounding the fraudulent inducement claim were

only actions taken as an agent, it was improper. In this

regard, it should be remembered that in ruling upon

motions prior to trial, the Court found Fawley’s attempt to

rekindle this exact defense to be “an impermissible

collateral attack on the 1995 judgment” and barred by res

judicata because “knowledge of the release does not change

the fact that [Sikorski] could have argued at trial [in front

of Judge Billings] the defense that he was acting as

USSCA’s agent.” Paper 185 at 13. The Court again made

this ruling clear to Sikorski and Fawley when it granted

Okemo and Mueller’s motion in limine “to exclude any

efforts to show that Sikorski only acted as an agent of

United States Sporting Clays Association and never acted

in his individual capacity in connection with the ‘game

fairs” because “such efforts would be an impermissible

attack on the 1995 judgment.” Paper 230 at 3.

Jury findings concerning fraud

upon the court and estoppel

Similarly, the jury’s findings as to fraud on the court

and estoppel wilt under the glare of inspection because the

court finds they are inextricably linked with the scope and

intent of the release. In other words, the common thread in

the fabric of this entire case 1s the notion that Okemo

concealed a release that, because it covered Sikorski, would

have provided Sikorski with a viable defense at the 1995

trial; and as the Court instructed the jury, Sikorski believes

this “constitutes a fraud upon the court, fraudulent

concealment, and fraudulent misrepresentation, as well as

abuse of process in obtaining and pursuing the 1995

Judgment.” Paper 257 at 2; see also id. at 17 (explaining

that “[ijn deciding the question of estoppel, [jurors] will

have to consider, among other things, the scope of the

Release between Okemo and USSCA”). This

interdependent reiationship between the scope of the

release on the one hand, and estoppel and fraud upon the

3la

court on the other hand, has also been clearly

acknowledged by Sikorski himself: “The jury has found,

unequivocally, that Okemo through its lawyers committed

fraud and fraud on the court, and is estopped to renew the

judgment, because Okemo released Sikorski from the

claims it then went ahead and tried against him, knowing

it had released those claims.” Paper 281 at 4 (emphasis

added); see also id. at 4-5 (emphasizing that Intervenors

have correctly observed that Sikorski’s claim for fraud on

the court is based upon the allegation that Okemo knew the

release covered Sikorsk)).

Fraud upon the court, moreover, requires evidence of

bad faith. See Transaero, Inc. v. La Fuerza Area Boliviana,

24 F.3d 457, 460-61 (2d Cir. 1994). Here, there is no

evidence, much less clear and convincing evidence, of a

fraudulent intent by Coutant at any point during this

lengthy litigation, including in front of Judge Billings, the

Connecticut bankruptcy court, and the Second Circuit. At

best, the statements and surrounding circumstances relied

upon by Sikorski to show fraud on the Court evidence lack

of knowledge, failed memory or reasonable mistake. As to

his understanding of the release, Coutant testified that he

still “dofes] not believe we did pursue claims that were

covered by the release,” TT Day 2 at 131, and that he had a

“clear conscience” on the matter. TT Day 2 at 63. The fact

that Coutant readily turned over the release to Fawley and

granted Fawley full access to his files supports his

testimony. TT Day 2 at 121.

Jury findings concerning

fraudulent concealment, fraudulent

misrepresentation, and abuse of process

41

Because the findings concerning the release, fraud on

the court, and estoppel cannot stand, the jury should never

have addressed Sikorski’s claims of fraudulent

concealment, fraudulent misrepresentation, and abuse of

32a

process. See Paper 255 (instructing the jury that

answering “no” to the questions of release, fraud on the

court, and estoppel necessitates by-passing question four of

the Verdict Form, which addresses fraudulent concealment,

fraudulent misrepresentation, and abuse of process).

4. Jury findings concerning I[ED

In contrast to his other affirmative defenses and

claims, Sikorski’s claim of ITED is well-removed from the

scope of the 1995 release. The ITED count was pled, not

just based upon non-disclosure of a release that would have

provided a defense at the 1995 trial, but also based upon

Okemo’s pursuit of Sikorski and overall aggressive

litigation and post-judgment collection efforts. See Paper

128 at 4] 1, 18 (Okemo has “for more than eight years

directed their agents and attorneys to aggressively pursue

collection of the judgment through legal process to identify

and attach Sikorski’s wages and assets”); see also Paper

255 (instructing that even if the jury answers “no” to the

questions of release, fraud upon the court, and estoppel, the

jury shall still proceed to answer the question of whether

Okemo is liable to Sikorski for ITED).

Under Vermont law, the elements of ITED are (1)

extreme and outrageous conduct, (2) done intentionally or

with reckless disregard of the probability of causing

emotional distress, (3) resulting in the suffering of extreme

emotionai distress, that is (4) actually or proximately

caused by the outrageous conduct. See Fromson v. State,

176 Vt. 395, 399 (2004). A successful ILED claim must

involve conduct “so outrageous as to surpass all possible

bounds of decency, and regarded as atrocious, and

utterly intolerable in a civilized community.” Gallipo v.

City of Rutland, 163 Vt. 83, 94 (1994) (internal quotation

marks and citations omitted). An [IED claim will not

stand, however, if the relevant conduct consists of “mere

insults, indignities, threats, annoyances, petty oppressions,

33a

or other trivialities.” Fromson, 176 Vt. at 399-400 (citing

Restatement (Second) of Torts § 46 cmt. d).

Viewed in the light most favorable to Sikorski, the

court finds there was sufficient evidence for a reasonable

jury to conclude that Okemo’s actions fell within the

spectrum of intentional extreme and outrageous conduct

such that it was liable for IED. The evidence showed that

Okemo pursued its claims and attempted to collect its

judgment against Sikorski knowing that he was “judgment

proof,” i.e., that Sikorski “had no capacity to pay a

judgment” and in fact, at the time was $300,000 in debt.

TT Day 1 at pp. 108-17. Okemo then spent years hounding

Sikorski, still knowing that he did not have the money

required to fulfill the judgment. In so doing, Okemo

obtained a twenty-five dollar per week levy on Sikorski’s

wages which negatively impacted his employment, attached

certain money that did not belong to Sikorski (but in fact

belonged to Sikorski’s family and friends and was intended

to fund Sikorski’s fiftieth birthday party), and, upon

learning that Sikorski’s mother had been diagnosed with

terminal cancer, engaged in a plan to monitor the Florida

obituaries and local news so that Okemo would be one of

the first to know when Sikorski’s mother died in order to

immediately seek proceeds from her estate. See e.g., TT

Day 2 at 45-60, 185-87; TT Day 3 at 139-43. A reasonable

jury could have found that this latter, somewhat morbid,

conduct by Okemo offers at least one incident of behavior

“that transcends the ignoble and vast realm of unpleasant”

conduct that may be expected by an entity attempting to

collect a judgment. Fromson, 176 Vt. at 400 (discussing

how an ITED claim in the employment context must show

at least one significant outrageous act). While the standard

of establishing outrageous conduct is “necessarily a high

one,” Denton v. Chittenden Bank, 163 Vt. 62, G6 (1994), the

facts of this case go beyond simply sending a demand letter

for an amount beyond the recipient's means and refusing to

settle. See Schwartz v. Frankenhoff, 169 Vt. 287, 299

34a

(1999) (finding such conduct by creditors failed to state a

claim for IIED). Instead, Okemo’s motivation in pursuing

Sikorski, the amount of time spent doing so, as well as the

methods employed by Okemo, could reasonably be viewed

by the jury as atrocious and intolerable in this society. It

was also reasonable for the jury to conclude that Okemo

intended to cause severe emotional distress to Sikorski, or

at least acted in reckless disregard of that possibility, since

Okemo believed Sikorski to be judgment proof. Finally,

Sikorski’s extreme suffering and causation is amply

supported by his own testimony and the testimony of

Patricia Healing, Cindy Rinfret, and Dr. Phillip Kinsler.

TT Day 4 at 77-171.

In sum, the Court grants Okemo’s motion for

judgment as a matter of law as it relates to the jury

findings of release, fraud on the Court, estoppel, fraudulent

concealment, fraudulent misrepresentation, and abuse of

process, but dentes Okemo’s motion as it relates to the

jury’s finding of ITED.

Okemo’s and Intervenors’

Alternative Motions for a New Trial

(Papers 275, 279)

This Court's previous conclusions render Okemo’'s

and Intervenors’ alternative motions for a new trial under

Fed. R. Civ. P. 59(a) moot, except as they relate to the jury's

findings of HED and damages in the amount of $650,000

As to liability, the alternative motions are denied because

the jury has not reached a “seriously erroneous” result; nor

could the verdict be viewed as against the weight of the

evidence so as to be termed a “miscarriage of justice.” See

Manly v. Ambase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003)

(internal quotation marks and citations omitted). Quite

frankly, the Court was shocked that Okemo even chose to

pursue Sikorski knowing he was judgment proof, and with

that knowledge, continued to pursue him in such a way

that can be characterized as systematic, drawn-out, and

debasing.

As to the jury’s award of $650,000 to Sikorski, it was

necessarily based upon on all the jury’s findings, not just

the finding of IIED. Thus, this Court is unable to

distinguish the valid amount of damages from the

unsupported amount, necessitating a new trial on the sole

issue of damages resulting from ITED. Additionally, the

Court finds the jury verdict to be excessive in light of the

rare circumstances of this case, including the fact that the

Court, as discussed below, is vacating the 1995 judgment

Before proceeding to another trial on damages

though, the Court sua sponte suggests a remittitur which

reduces the damage award from $650,000 to $250,000. See,

e.g., Peterson v. County of Nassau, 995 F. Supp. 305, 312

(E.D.N.Y. 1998) (“A court may, sua sponte offer a remittitur

as an alternative to a new trial.”). Sikorski may accept

such reduction by December 15, 2006, or proceed to a new

trial on the issue of damages

cr. Sikorski’s Motion for Equitable

Relhef

(Paper 251)

Sikorski's renewed motion for equitable relief from

the 1995 Judgment is made pursuant to Fed. R. Civ. P

60(b)(5) and (b)(6). Rule 60(b) provides

On motion and upon such terms as are just, the court

may relieve a party... from a final judgment, order,

or proceeding for the following reasons: ... (5) the

judgment has been satisfied, released, or discharged,

or a prior judgment upon which it is based has been

reversed or otherwise vacated, or 1t is no longer

equitable that the judgment should have prospective

application: or (6) any other reasons justifving relief

36a

from the operation of the judgment .... This rule

does not limit the power of a court to entertain an

independent action to relieve a party from a

judgment, order, or proceeding, or to grant relief toa

defendant not actually personally notified as

provided in Title 28, U.S.C., § 1655, or to set aside a

judgment for fraud upon the court.

This rule is a “grand reservoir of equitable power to do

justice in a particuiar case,” Marrero Pichardo v. Ashcroft,

374 F.3d 46, 55 (2d Cir. 2004) (quoting Matarese V.

Lefevre, 801 F.2d 98, 106 (2d Cir. 1986)), and is designed to

balance “the sanctity of final judgments” and the command

“that justice be done in light of all facts.” Paddington

Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir. 1994)

(citing Bankers Mortgage Co. v. United States, 423 F.2d 73,

77 (5 Cir. 1970)). It has been often noted that Rule 60(b)

“confers broad discretion on the trial court to grant relief

when appropriate to accomplish justice.” Id. Relief under

Rule 60(b)(6), however, “should not be granted casually, but

rather is properly invoked only where there are

extraordinary circumstances justifying relief, when the

judgment may work on extreme hardship, and when the

asserted grounds for relief are not recognized in clauses (1)-

1992 WL 51567, at *6 (S.D.N.Y. Mar. 9, 1992). Asin other

instances when the trial court is afforded broad discretion,

the trial court’s decision is generally not reviewable on

appeal absent a clear abuse of discretion. See Altman v.

Connally, 456 F.2d 1114, 1116 (2d Cir. 1972).

The Court is aware that Rule 60(b)(6) motions are

not, by any stretch, granted on a routine basis. As cogently

explained by the Second Circuit:

Very high among the interests in our jurisprudential

system is that of finality of judgments. It has become

almost a judicial commonplace to say that litigation

37a

must end somewhere, and we reiterate our firm

belief that courts should not encourage the reopening

of final judgments or casually permit the relitigation

of litigated issues out of a friendliness to claims of

unfortunate failures to put in one’s best case.

United States v. Cirami, 563 F.2d 26, 33 (2d Cir. 1977).

Nevertheless, the Court, intimately familiar with the

byzantine nature of this litigation, concludes that it

presents extraordinary circumstances which, when

considered cumulatively, justify relief: (1) the case has

gone on for 13 years and to date has involved 2 trials and

an appeal —in Okemo’s words, “[i]Jt would be hard to find a

case with a more tangled and tortured procedural history,”

Paper 167 at 2; (2) even though the gaming event was not a

success on paper, Okemo received considerable positive

exposure, So much so that it desired to hold the event again

the next year; (3) Mueller and Okemo knew Sikorski was

‘judgment proof’ yet still pursued him fully, knowing he

was not represented by an attorney, while settling with the

deeper pocket defendants for a relatively small amount of

1oney; (4) Sikorski represented himself at the first trial; (5)

nearly a decade of collection efforts have yielded a paltry

sum yet served to ruin Sikorski both financially and

psychologically; and (6) a jury was persuaded Sikorski was

entitled to damages from Okemo’s wrongdoing.

Apart from the presence of extraordinary

circumstances, the Court is convinced that the 1995

judgment has worked an extreme hardship on many, if not

all of the people involved in this case. It has ruined

Sikorski, impacted Sikorski’s family members and those

close to him, brought embarrassment to Okemo and

Mueller, almost irreparably, yet undeservedly, tarnished

the reputation of one of the members of this bar and his

firm, and resulted in countless hours of useless collection

efforts and further htigation. Admittedly, the 1995

judgment did hold a man accountable for his wrongful

38a

actions. But Sikorski’s actions do not come close to

justifying the unenviable positions in which everyone

involved in this litigation finds themselves today.

Accordingly, the Court exercises its equitable powers

and grants Sikorski’s Rule 60(b)(6) motion for equitable

relief. In turn, the Court declines to renew and extend the

1995 Judgment for the additional eight-year period.

IV. Conclusion

For the reasons discussed above:

Okemo’s motion for judgment as a matter of

law, Paper 275, is GRANTED as to the jury’s

findings concerning the release, fraud,

estoppel, fraudulent concealment, fraudulent

misrepresentation, and abuse of process, and

DENIED as to the jury's finding of IED;

Intervenors motion for judgment as a matter

of law, Paper 279, is construed as a

memorandum, thereby rendering the motion

moot

Okemo’s and Intervenors’ alternative motions

for a new trial, Papers 275, 279, are

GRANTED to the extent that a new trial is

necessary to determine the appropriate

amount of damages related to the ILED

finding; and

As an alternative to a new trial, Sikorski shall

have until December 15, 2006 to notify the

Court whether he agrees to remit that portion

of the jury award exceeding $250,000. Should

Sikorski refuse to make such remittitur, this

case shall be set for the January 2007 trial

39a

calendar to determine the appropriate amount

of damages.

Further, it is hereby ORDERED that:

Sikorski’s renewed motion for equitable rehef

from the 1995 judgment, Paper 251, 1s

GRANTED;

Okemo’s request to renew the 1995 judgment

is DENIED;

The 1995 judgment is VACATED in full; and

Okemo shall return any money collected thus

far from Sikorski in partial fulfillment of the

1995 judgment.

SO ORDERED.

Dated at Brattleboro, Vermont, this 16'" day of

November, 2006.

/s/ J. Garvan Murtha |

J. Garvan Murtha

United States District Judge

40a

07-2314- cv(L)

Okemo Mountain, Inc. v. Sikorski,

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel Patrick

Moynihan United States Courtnouse, 500 Pearl Street, in

the City of New York, on the 19th day of December, two

thousand eight.

PRESENT:

HON. JOSEPH M. McLAUGHLIN,

HON. DEBRA A. LIVINGSTON,

Circuit Judges,

HON. JOHN G. KOELTL,*

District Judge.

OKEMO MOUNTAIN, INC.,

Plaintiff-Counter-Defendant- Appellant-Cross-

Appellee,

-V- Nos. 07-2314-cv (LEAD),

07-2316-cv (XAP)

PATRICK J. SIKORSKI,

Defendant-Counter-Claimant-Third- Party-

Plaintiff-Appellee-Cross- Appellant,

UNITED STATES SPORTING CLAYS ASSOCIATION,

BOB L. DAVIS, OVERSEAS SERVICES, INC., doing

business as EXPEDITIONS,

Defendants-Counter-Claimants,

4la

TIMOTHY T. MUELLER,

Third-Party-Defendant.

RICHARD COUTANT and SALMON & NOSTRAND,

Intervenors-Cross-Appellees.

*The Honorable John G. Koeltl, District Judge for

the Southern District of New York, sitting by designation.

MICHAEL F. HANLEY, Plante

& Hanley, P.C., White River

Junction, VT, for Plaintiff-

Counter-Defendant-Appellant-Cross Appellee.

R. BRADFORD FAWLEY,

Downs Rachlin Martin PLLC,

Brattleboro, VT, for Defendant-

Counter-Claimant-Third-Party-

Plaintiff-Appellee-Cross-

Appellant.

ROBERT B. HEMLEY (Norman

Williams, on brief), Gravel and Shea,

Burlingto, VT, for Intervenors-Cross-Appellees.

UPON DUE CONSIDERATION, it is hereby

ORDERED, ADJUDGED, and DECREED that the

judgment of the district court is AFFIRMED in part and

REVERSED in part, and that the appeal is DISMISSED in

part.

Okemo Mountain, Inc. (“Okemo”) appeals and

Patrick J. Sikorski cross-appeals from the April 13, 2007

judgment (amended May 16, 2007) of the United States

District Court for the District of Vermont (Murtha, J.),

issued pursuant to the April 7, 2006 jury verdict on their

civil suit and as modified by the district court's

November 16, 2006 rulings on the parties’ post-trial

42a

motions. We assume the parties’ familiarity with the

underlying facts, procedural history, and specification of

the issues on appeal.

Initially, we reject Sikorski’s contention that Okemo

waived its arguments regarding the proper interpretation

of the release and Sikorski’s claim of intentional infliction

of emotional distress (“ITED”) by failing to object to jury

instructions on those issues. The focus of Okemo’s

arguments is not the jury instructions themselves, but the

district court’s rulings on Okemo’s Rule 50(b) motions. See

City of St. Louis v. Praprotnik, 485 U.S. 112, 120 (1988).

“Although the same legal issue[s were] raised both by those

motions and by the jury instruction[s], ‘the failure to object

to an instruction does not render the instruction the “law of

the case” for purposes of appellate review of the denial of a

directed verdict or judgment notwithstanding the verdict.”

Id. (quoting Springfield v. Kibbe, 480 U.S. 257, 264 (1987)

(O’Connor, J., dissenting)).

When evaluating a district court’s decision on a

motion for judgment as a matter of law under Federal Rule

of Civil Procedure 50(b), this Court reviews the decision de

novo, regardless of whether the district court granted the

motion, see, e.g., O & G Indus., Inc. v. Nat'l R.R. Passenger

Corp., 537 F.3d 153, 163 (2d Cir. 2008), or denied it, see e.g.,

Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219,

226-27 (2d Cir. 2006). In this inquiry, we apply the same

standard as the district court was required to apply.

Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 121-

22 (2d Cir. 2008). Therefore, we “consider the evidence in

the light most favorable to the non-moving party and give

that party the benefit of all reasonable inferences from the

evidence that the jury might have drawn in that party’s

favor.” Jd. At 122 (internal quotation marks omitted)

(quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d

Cir. 2000)). A motion for judgment as a matter of law may

properly be granted “[o]nly if there ts ‘such a complete

absence of evidence supporting the verdict that the jury’s

43a

findings could only have been the result of sheer surmise

and conjecture, or such an overwhelming amount of

evidence in favor of the movant that reasonable and fair

minded men could not arrive at a verdict against [the

moving party].”” LeBlanc-Sternberg v. Fletcher, 67 F.3d

412, 429 (2d Cir. 1995) (second alteration in original)

(quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d

Cir. 1992)).

We agree with the district court that Okemo satisfied

this weighty burden with respect to its motion for judgment

as a matter of law that the release did not cover the

fraudulent inducement action brought against Sikorski in

his individual capacity. Because this Court previously

determined that the language of the release was

ambiguous, see Okemo Mountain, Inc. v. U.S. Sporting

Clays Ass'n, 376 F.3d 102, 105 (2d Cir. 2004), Sikorski may

not rely on the language of the release alone to support the

jury’s verdict. Yet Sikorski is unable to point to additional

evidence that sheds light on the proper interpretation of the

release without impermissibly attacking the 1995 judgment

holding him lable individually for fraudulent inducement.

It is of no probative value that Okemo asserted separate

agency claims against the United States Sporting Clays

Association (“USSCA”) based on actions it alleged Sikorski

took on the USSCA’s behalf, and that Stacy Chapman

wanted the release to fully resolve all claims against the

USSCA and its agents. Nor is there any basis for

interpreting the release as distinguishing between the

fraudulent inducement claim and the “wholly ‘individual’

claims of double billing and breach of contract.” Sikorski’s

Reply to Okemo’s & Intervenors’ Opp’n Brs. 8. The

language of the release fails to draw such a distinction, and

the latter claims are not so unrelated to the USSCA as

Sikorski implies. Cf, e.g... Okemo’s Am. Compl. 35, Jan. 22,

1993 (alleging that “Patrick J. Sikorski, acting as agent and

employee of USSCA, employed the practice of ‘double

billing” (emphasis added)).

44a

The claims on which the district court granted

Okemo’s Rule 50(b) motions were each premised upon the

jury’s finding that the release in fact covered the fraudulent

inducement claim against Sikorski individually. Because

we agree with the district court that the evidence fails as a

matter of law to support this interpretation of the release,

we affirm the district court’s decision to grant these

motions.

Turning to Okemo’s argument that the district court

should have granted it judgment as a matter of law on

Sikorski’s ITED claim, we apply the substantive law of

Vermont to assess the evidence submitted in support of

that claim. According to the Supreme Court of Vermont,

“[t]o sustain a claim for ITED plaintiff must show

defendant[ ] engaged in ‘outrageous conduct, done

intentionally or with reckless disregard of the probability of

causing emotional distress, resulting in the suffering of

extreme emotional distress, actually or proximately caused

by the outrageous conduct.” Fromson v. State, 848 A.2d

344, 347 (Vt. 2004) (quoting Sheltra v. Smith, 392 A.2d 431,

433 (Vt. 1978)). To qualify as outrageous conduct, a

defendant’s actions must be “so extreme in degree as to go

beyond all possible bounds of decent and tolerable conduct

in a civilized community and be regarded as atrocious and

utterly intolerable.” Jd. (quoting Dulude v. Fletcher Allen

Health Care, Inc., 807 A.2d 390, 398 (Vt. 2002)). The test

for outrageousness is an objective one, Baldwin v. Upper

Valley Serus., Inc., 644 A.2d 316, 319 (Vt. 1994), and

“[a]bsent at least one incident of behavior that transcends

the ignoble and vast realm of unpleasant and often

stressful conduct ..., incidents that are themselves

insignificant should not be consolidated to arrive at the

conclusion that the overall conduct was outrageous.”

Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994):

accord Dulude, 807 A.2d at 399.

Applying these standards, we disagree with the

district court and conclude that Okemo was entitled to

45a

judgment as a matter of law with respect to Sikorski’s HED

claim. Assuming that Okemo’s plan to attach the estate of

Sikorski’s terminally ill mother was sufficiently outrageous

to satisfy the IIED standard, there is no evidence that

Sikorski was aware of this plan prior to trial, see Trial Tr.

150:6-13, Apr. 5, 2006, which forecloses the possibility that

the plan actually or proximately caused Sikorski distress.

The only other event that arguably might be outrageous

enough to satisfy Vermont's IIED standard would be

Okemo’s attachment of the bank account containing funds

provided by Sikorski’s family and friends to pay for

Sikorski’s fiftieth birthday celebration. However, the bank

account was apparently in Sikorski’s name, see id. at 142:1-

11, and there is no evidence that Okemo was aware of the

funds’ purpose or ownership when it attached the account.

Therefore, Sikorski cannot show that Okemo attached the

bank account “intentionally or with reckless disregard of

the probability of causing emotional distress.” Fromson,

848 A.2d at 347 (internal quotation marks omitted)

(quoting Sheltra, 392 A.2d at 433). Because there are no

other incidents that might be sufficiently outrageous to

support Sikorski’s IIED claim, we reverse the district

court’s denial of Okemo’s motion for judgment as a matter

of law on the ILIED claim, and we remand to the district

court with instructions to vacate the award entered in

Sikorski’s favor on that claim. We dismiss as moot Okemo’s

appeal of the district court’s decision to grant a remittitur

to Sikorski.

We disagree with the district court’s decision to

vacate the 1995 judgment against Sikorski and find that it

was an abuse of discretion to do so. There was no basis

under rule 60 to vacate the judgment when the district

court found that there had been no fraud, and no other

exceptional circumstances existed. On the other hand, at

oral argument, counsel for Okemo agreed that if the 1995

judgment were not vacated and this Court found in

Okemo’s favor on the IILED claim, Okemo would no longer

46a

seek to renew its 1995 judgment against Sikorski. Because

we have concluded that the 1995 judgment should not have

been vacated and that Okemo was entitled to judgment as a

matter of law on the ITED claim, we therefore dismiss

Okemo’s challenge to the district court’s refusal to renew

the 1995 judgment. All arguments not otherwise discussed

in this summary order are found to be either moot or

without merit.

For the foregoing reasons, the judgment of the

district court is hereby affirmed as to the Rule 50(b)

motions that the district court granted to Okemo. The

judgment is reversed as to the district court’s denial of

Okemo’s 50(b) motion on Sikorski’s IIED claim and

remanded with instructions to the district court to vacate

the monetary award entered in Sikorski’s favor on this

claim. Okemo’s appeal of the decision to grant Sikorski

remittitur is dismissed as moot. The district court’s

decision vacating the 1995 judgment is reversed and

remanded, and Okemo’s appeal from the district court’:

decision refusing to renew the 1995 judgment is dismissed

as moot.

FOR THE COURT

Catherine O’Hagan

Wolfe. Clerk

By IS/ Franklin Perez

A TRUE COPY

Catherine O’Hagan

Wolfe, Clerk

by /s/ Anna | |

DEPUTY CLERK

4/a

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Daniel Patrick

Moynihan United States Courthouse, 500 Pearl Street, in

the City of New York, on the 17 day of March, two

thousand and nine

Okemo Mountain, Inc..

Plaintiff-Counter-Defendant-Appellant

Cross-Appellee,

ORDER

Docket Number: 07-5

07-2316-cv(XAP)

Patrick J. Sikorsk)

Defendant-Counter-Claimant-Third-Party

Plaintiff-Appellee-Cross-Appellant,

United States Sporting Clays Association, Bob L. Davi

Overseas Services, (nc., doing business as Expeditions

Defendant-Counter-Claimant

imothy T. Muelle:

Third-Party-Defendant

Richard Coutant and Salmon & Nostrand

Interveno A\ppelles

i petition tol

48a

panel rehearing, or, in the alternative, for rehearing en

banc, and the panel that determined the appeal having

considered the request for panel rehearing, and the active

members of the Court having considered the request for

rehearing en banc,

[TIS HEREBY ORDERED that the petition is

denied

For the Court:

Catherine O’Hagan Wolfe.

Clerk

By: _/s/ Franklin Perez

Frank Perez, Deputy Clerk

49a

GENERAL RELEASE

TO ALL TO WHOM THESE PRESENTS SHALL

COME OR MAY CONCERN:

GREETING: KNOW YE, That

OKEMO MOUNTAIN, INC.,

For and in consideration of the sum of One Dollar and

Other Valuable Consideration lawful money of the United

States of America to it in hand paid by

UNITED STATES SPORTING CLAYS ASSOCIATION,

The receipt whereof is hereby acknowledged, has remised,

released and forever discharged, and by these presents does

for itself, its officers, agents, employees, attorneys,

successors and assigns, remise, release and forever

discharge the said

UNITED STATES SPORTING CLAYS ASSOCIATION

[ts officers, agents, employees, attorneys, successors and

assigns, of and from all, and all manner of action and

actions, cause and causes of action, suits, debts, dues, sums

of money, accounts, reckoning, bonds, bills, specialties,

covenants, contracts, controversies, agreements, promises

variances, trespasses, damages, judgments, extents,

executions, Claims and demands whatsoever, in law or in

equity, which against the said

UNITED STATES SPORTING CLAYS ASSOCIATION

its officers, agents, employees, attorneys, successors and

assigns, it ever had, now has or which its officers, agents

employees, attorneys, successors and assigns has or may

have for, upon or by reason of any matter, cause or thing

50a

whatsoever from the beginning of the world to the day of

the date of these presents.

And more particularly but without limiting the

generality of the foregoing has remised, released and

forever discharged the said United States Sporting Clays

Association from all claims arising out of a suit brought in

the United States District Court for the District of

Vermont, Civil Action, Docket No. 5:93-cv-22 and captioned:

“OKEMO MOUNTAIN, INC. V. UNITED STATES

SPORTING CLAYS ASSOCIATION, BOB L. DAVIS.

PATRICK SIKORSKI and OVERSEAS SERVICES, INC.

d/b/a EXPEDITIONS”.

IN WITNESS WHEREOF, I have hereunto set my

hand and seal the 23" day of February in the year

Nineteen Hundred and Ninety-F ive.

IN PRESENCE OF:

OKEMO MOUNTAIN, INC.

s/Donald E.[ ] BY: s/Timothy Mueller

First Witness Its Duly Authorized Agent

s/[_]

Second Witness

as = : -<- 7 . a ~ :

a a eee ” . EE OE LOS I

STATE OF VERMONT

WINDSOR COUNTY, SS. On this the 23 day of February,

1995 before me, Barbara Johnston, the undersigned officer,

personally appeared Timothy Mueller, Duly Authorized

Agent of Okemo Mountain, Inc., known te me (or

satisfactorily proven) to be the person whose name

subscribed to the within instrument and acknowledged that

he executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and

official seal.

s/ Barbara Johnson

Notary Public

My Commission Expires: 2/10/99

52a

UNITED STATES DISTRICT COURT

DISTRICT OF VERMONT

OKEMO MOUNTAIN, INC.,

Plaintiff and

Counter-Defendant,

v.

PATRICK J. SIKORSKI, | File No.

Defendant, . 1:93-cv-22

Counter-Claimant. .

VERDICT FORM

4s Considering all the facts and circumstances

surrounding its execution, do you find that the

February 23, 1995 Generali Release was intended to

release the fraudulent inducement claim by Okemo

against Mr. Sikorski?

Yes V No

J

z Do you find that Mr. Sikorski has proved by clear

and convincing evidence that Okemo, through its

attorney, committed fraud upon the court in seeking,

obiining, maintaining, executing, or renewing the

1995 Judgment against Mr. Sikorski?

Yes V No

3. Was Okemo estopped from seeking, obtaining,

maintaining, or executing the 1995 Judgment, and is

Okemo estopped from renewing the Judgment

against Mr. Sikorski?

5

Yes VJ No

If you answered “Yes” to any of Questions 1, 2, and

3, please proceed to Questions 4 and 5. If you

answered “No” to all of Questions 1, 2, and 3, leave

Question 4 blank and proceed to Question 5.

a. Do you find that Mr. Sikorski has proved by clear

and convincing evidence that Okemo is liable to Mr.

Sikorski for the following claims:

Fraudulent Concealment?

Yes VJ No

Fraudulent Misrepresentation?

Yes Vo No

b. Do you find that Mr. Sikorski has

proved by a preponderance of the evidence that

Okemo is liable to Mr. Sikorski for:

Abuse of Process’

Yes V No

Do you find that Mr. Sikorski has proved by a

preponderance of the evidence that Okemo 1s liable

to Mr. Sikorski for intentional infliction of emotional

distress?

Yes V No

If you answered “No” to all parts of

Questions 4 and 5, stop here. Your deliberations are

done; please sign and date the verdict form at

bottom.

If you answered “Yes” to any part of Questions 4 and

5, please proceed to Questions 6

54a

6. Do you find that Mr. Sikorski has proved by a

preponderance of the evidence that he should be

awarded compensatory damages for any effects he

suffered because of Okemo’s wrongdoing?

If your answer is “yes,” in what

amount? $650,000.00

Please proceed to Question 7.

7. Do you find Okemo liable to Mr. Sikorski for -unitive

damages?

Yes No V

s/ Jury Foreperson

Foreperson

4/7/06

Date

3098685