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A Party Must Preserve at the Trial Stage Its Arguments For Appeal

In Stratton Corp. and Intrawest Stratton Development Corp. v. Engelberth Construction, Inc., v. Evergreen Roofing, LLC, 2015 VT 69 (May 1, 2015), the Vermont Supreme Court found that a Third Party Defendant had not preserved its right to challenge the trial court’s denial of a Defendant/Third Party Plaintiff’s motion for summary judgment.

Issue: Third-Party Defendant Subcontractor appealed a jury verdict finding that it breached its contract with Defendant/Third-Party Plaintiff Contractor and that it was obligated to indemnify Contractor in an action brought by Plaintiff Developer. Subcontractor argued that it was error for the trial court to deny Contractor’s pretrial summary judgment motion regarding several issues.

Holding: The Court affirmed the holdings on the ground that Subcontractor failed to preserve its argument. In particular, it found that a party cannot generally appeal a pretrial summary judgment order after the trial, as the verdict supersedes the summary proceedings. It also found that Subcontractor did not raise any of the issues in its appeal at trial, precluding review of the same on appeal.

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