Kneebinding, Inc. v. Richard Howell

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2020 VT 99

No. 2019-368

Kneebinding, Inc. Supreme Court

On Appeal from
v. Superior Court, Washington Unit,
Civil Division

Richard Howell June Term, 2020

Mary Miles Teachout, J.

Peter G. Anderson of Anderson & Associates, Stowe, for Plaintiff-Appellee.

Richard J. Howell, Pro Se, Stowe, Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. CARROLL, J. This appeal is the third time the dispute between Richard Howell

and KneeBinding, Inc., has reached this Court. In Kneebinding, Inc., v. Howell (KneeBinding II),

2018 VT 101, ¶ 150, 208 Vt. 578, 201 A.3d 326, we in large part affirmed an August 2016 trial

court decision, but reversed its decision to terminate a March 30, 2009 permanent injunction and

remanded the court’s award of attorney’s fees to KneeBinding with directions to consider

additional evidence of legal fees. On remand in August 2019, the trial court (1) awarded additional

attorney’s fees to KneeBinding; (2) issued a sanction for a May 23, 2018 finding that Howell

violated an August 10, 2017 injunction that was in place while KneeBinding II was pending; and

(3) found Howell in contempt for violating the March 2009 permanent injunction that this Court

restored in KneeBinding II. On appeal, Howell challenges the May 23, 2018, finding that he
violated the August 2017 injunction and the August 2019 finding that he violated the March 2009

permanent injunction. We affirm.

I. Factual and Procedural Background

¶ 2. In 2003, Richard Howell invented a binding that has a “special, patented heel

release designed to mitigate knee injuries . . . that are common in downhill skiing.” Id. ¶¶ 2-3.

Around the same time, Howell founded a company with the name KneeBinding that was

incorporated in Delaware and had its principle place of business in Stowe, Vermont. In November

2007, Howell formed a business relationship with John Springer-Miller, and the two signed

transaction documents, which included an employment agreement, a stock-purchase agreement,

an investor-rights agreement, and an amended certificate of incorporation. These transaction

documents created the following corporate structure. Springer-Miller was the majority

shareholder and Howell was a minority shareholder. Howell would serve as president, chief

executive officer, secretary, and treasurer. His employment, however, was at-will. Id. Springer-

Miller would serve as the company’s chief financial officer and have control over the company

funds.

¶ 3. Howell and Springer-Miller’s working relationship “began to deteriorate almost

immediately,” and the KneeBinding board voted to terminate Howell as president in September

2008. Id. ¶¶ 10, 13. In December, Howell signed a severance agreement and eventually resigned

from the board. The severance agreement contained a non-disparagement clause, a confidentiality

clause, and a release. The release provided the following:

In consideration of the agreements and promises described in
Paragraph 2(b), which you acknowledge you would not otherwise
be entitled to receive, you hereby fully, forever, irrevocably and
unconditionally release, remise, and discharge the Company, its
officers, directors, attorneys, affiliates, investors, agents and
employees (each in their individual and corporate capacities)
. . . from any and all claims . . . of every kind and nature that you
ever had or now have against the Released Parties, including, but

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 not limited to, any and all claims arising out of or relating to your
employment with and/or separation from the Company . . . .

The end of the severance agreement explained that the severance agreement “constitutes the entire

understanding and agreement between the parties hereto with respect to your severance benefits

and the settlement of claims against the Company and cancels all previous oral and written

negotiations, agreements, commitments and writings in connection therewith.”

¶ 4. In March 2009, KneeBinding filed a motion for an ex parte temporary restraining

order (TRO) alleging that Howell had violated the confidentiality and non-disparagement portions

of the severance agreement. The trial court granted the motion and issued a TRO ordering Howell

“not to publish oral or written statements relating to KneeBinding to any ‘current or potential

customer, client, investor, and vendor.’ ” KneeBinding II, 2018 VT 101, ¶ 14. KneeBinding

subsequently filed a motion for contempt because Howell responded to the TRO by picketing in

front of the courthouse with a sign alleging that “ ‘KneeBinding was 100% defective.’ ” Id.

¶ 5. On March 30, 2009, the parties reached two agreements that the trial court signed

into orders: a stipulation for a permanent injunction and a stipulation regarding contempt. The

permanent injunction provided, among other things, the following:

(1) [Howell] shall not publish or cause to be published any
communication, oral or written, that relates to KneeBinding, its
products, or John or Tina Springer-Miller or any of its other
principals to any current or potential customer, client, investor or
vendor.

(2) [Howell] shall not publish or caused to be published any
communication, oral or written, that has a reasonable likelihood to
create confusion as to whether he speaks or acts on behalf of
KneeBinding, its products, or John or Tina Springer-Miller or any
of its other principals.

Id. ¶ 16 (alteration in original). The contempt stipulation provided that Howell had violated the

TRO, set an appropriate fine of $7000, and relieved Howell’s obligation to pay the fine if he did

not violate the permanent injunction prior to September 15, 2009.

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 ¶ 6. That same month, KneeBinding filed suit against Howell, alleging: (1) trademark

infringement, (2) violations of the non-disparagement and noncompete provisions of the severance

agreement, (3) tortious interference with contract, (4) defamation, and (5) misappropriation of

trade secrets. Howell counterclaimed, alleging: (1) defamation, (2) breach of contract,

(3) invasion of privacy, (4) misappropriation, (5) unfair competition, (6) patent violations,

(7) tortious interference with busines relations, and (8) intentional infliction of emotional distress.

While the case was proceeding at the trial court, KneeBinding moved for sanctions in 2010, and

again in 2012, alleging that Howell had violated the permanent injunction.

¶ 7. In 2012, the trial court granted partial summary judgment to KneeBinding, ruling

that Howell’s claims were barred by the release in the severance agreement, with the exception of

his claims for misappropriation of his name and skills, defamation, and intentional infliction of

emotional distress. This ruling was affirmed on interlocutory appeal. Following KneeBinding I,

the trial court conducted a twenty-day trial and issued a lengthy decision in August 2016 ruling

against Howell on his remaining claims. As to KneeBinding’s claims, the court ruled that Howell

had defamed the company and violated the permanent injunction. The court directed the parties

to submit further briefing on sanctions for violating the injunction and the appropriate damages for

defamation.

¶ 8. From January to April 2017, the trial court issued a series of interlocutory decisions

on these remaining issues. As relevant to this appeal, these decisions included: (1) declining to

impose the $7000 stipulated fine for violating the permanent injunction; (2) vacating the

permanent injunction, reasoning that keeping the injunction in effect post-trial posed First

Amendment concerns; and (3) awarding KneeBinding $22,433 in attorney’s fees incurred

litigating the contempt claims. KneeBinding appealed.

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 ¶ 9. While the appeal in KneeBinding II was pending, KneeBinding moved, pursuant to

Vermont Rule of Civil Procedure 62(d)(2), to restore the permanent injunction pending appeal.

On August 10, 2017, the trial court instated a modified injunction, which provided:

[W]hile an appeal by a party to this litigation is pending in the
Vermont Supreme Court,

1. Richard J. Howell shall not publish or cause to be published any
false, disparaging, or derogatory communication, oral or written,
regarding KneeBinding, Inc., its products, John or Tina Springer-
Miller, or any other KneeBinding principal, to any media outlet,
industry group, current or potential customer, client, investor, or
vendor.

¶ 10. Between February and March 2018, while KneeBinding II was still pending,

Howell sent three emails to Progressive Plastics—one of Kneebinding’s vendors—alleging that

Progressive was infringing on his patents and directing Progressive, under the threat of litigation,

to cease production and pay him damages. Based on these emails, KneeBinding filed another

motion for contempt in the trial court arguing that Howell violated the August 2017 injunction.

On May 23, 2018, Judge Bryan1 found Howell in contempt for sending three emails to Progressive

Plastics “making false statements that he owned the KneeBinding patents and that Progressive was

infringing them”; however, Judge Bryan declined to impose a fine while there was an appeal

pending in this Court.

¶ 11. In October 2018, this Court issued KneeBinding II, which in large part affirmed the

trial court’s August 2016 and subsequent interlocutory decisions. 2018 VT 101, ¶ 150. However,

we reversed the trial court’s decision to vacate the permanent injunction, explaining that the

permanent injunction did not pose First Amendment concerns “[b]ecause the record evidence

demonstrate[d] that the stipulation providing for the injunction was voluntarily agreed to after day-

long negotiations—with counsel representing both parties—and it clearly identifie[d] the free

1
The opinion references judges by name, rather than the trial court, given the multiple
judges that issued orders relevant to this appeal.
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speech rights that Howell” relinquished. KneeBinding II, 2018 VT 101, ¶ 63. In addition, we

reversed and remanded the court’s award of attorney’s fees to KneeBinding for litigating the

contempt claims because the court ignored evidence regarding the “significant legal fees” incurred

in filing the second motion for contempt in 2010. Id. ¶ 133.

¶ 12. In January 2019, KneeBinding filed a fifth contempt motion based on additional

emails and letters Howell sent to Progressive Plastics and KneeBinding principals in November

2018 requesting damages for infringing on Howell’s patents.

¶ 13. In April and August 2019, Judge Teachout conducted two days of hearings to

address three remaining issues that are at the center of the present appeal: (1) the attorney’s fees

issue remanded in KneeBinding II; (2) the proper sanction for Judge Bryan’s May 23, 2018,

contempt finding; and (3) the new motion for contempt filed in January 2019. In regard to the first

issue, the trial court awarded an additional $6835 in attorney’s fees. Second, as a sanction for the

May 23 contempt finding, the court issued a declaration providing that “[a]ny representation by

Mr. Howell that he owns the specific patents and intellectual property determined by this court

and the Vermont Supreme Court to be solely owned by KneeBinding, Inc., and not by Mr. Howell,

is incorrect.” Finally, the court found that Howell violated the March 2009 permanent injunction

based on a November 15, 2018 letter he sent to Progressive Plastics where he falsely asserted that

he owned the patents to the ski bindings. As a sanction for the contempt finding, the court awarded

$10,000 in attorney’s fees and a coercive fine of $7000 for any future violation, which would

increase by $7000 upon each successive violation.

¶ 14. On appeal, Howell argues that both Judge Bryan and Judge Teachout erred. He

challenges Judge Bryan’s May 23, 2018 contempt finding on the ground that there was no

injunction in effect when he sent the emails to Progressive Plastics. Second, Howell argues that

his due process rights were violated because he did not receive notice of the hearing where Judge

Bryan considered KneeBinding’s request to restore the permanent injunction pending appeal.

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Third, Howell alleges that the injunction is invalid because Judge Bryan engaged in some kind of

transcript fraud. Fourth, Howell argues that the August 2017 injunction unconstitutionally

interferes with his right to earn a living and violates public policy. Finally, he argues that he did

not violate the August 2017 injunction because at the time he sent the emails to Progressive

Plastics, he owned, or had a reasonable expectation that he owned, the KneeBinding patents.

¶ 15. With regard to Judge Teachout’s decision, Howell argues that the court’s award of

sanctions did not specify whether he violated the August 2017 or March 2009 permanent

injunction. Howell argues that the failure creates a material ambiguity that voids the award of

sanctions. Second, he renews his argument that the permanent injunction unconstitutionally

interferes with his right to earn a living. Related to this argument, Howell also argues that the

court erred in preventing him from presenting testimony that demonstrated how the permanent

injunction interferes with his right to earn a living. Finally, Howell argues that the court erred in

finding that he violated the permanent injunction because he had a reasonable expectation that he

owned the patents when he sent the November 15, 2018 letter.

¶ 16. We first address the specific challenges Howell raises with regard to Judge Bryan’s

and Judge Teachout’s decisions. We then address Howell’s broader argument against the

contempt proceedings as a whole—that he did not violate the August 2017 or March 2009

injunction because he owns, or has a reasonable expectation that he owns, the Kneebinding patents.

II. Judge Bryan’s Contempt Finding

¶ 17. On May 23, 2018, Judge Bryan found that Howell violated the August 2017

injunction by sending three emails to Progressive Plastics between February and March 2018

alleging that Progressive Plastics was infringing on his patents and directing Progressive, under

the threat of litigation, to cease production and pay Howell damages. Despite finding Howell in

contempt, Judge Bryan declined to impose a sanction while the trial court’s August 2016 and

subsequent interlocutory decisions were pending on appeal in KneeBinding II. On remand from

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our decision in KneeBinding II, Judge Teachout imposed a sanction for Judge Bryan’s contempt

finding—a declaration providing that “[a]ny representation by Mr. Howell that he owns the

specific patents and intellectual property determined by this Court and the Vermont Supreme Court

to be solely owned by KneeBinding, Inc., and not by Mr. Howell, is incorrect.”

A. Status of Injunction Between February and March 2018

¶ 18. Howell argues that there was no injunction in effect when he sent the three emails

to Progressive Plastics. We begin with some additional factual and procedural background. In

March 2009, the parties stipulated to a permanent injunction. In March 2017, however, the trial

court vacated the permanent injunction, explaining that keeping the injunction in effect post-trial

posed First Amendment concerns. On July 3, 2017, KneeBinding moved, pursuant to Vermont

Rule of Civil Procedure 62(d)(2), to restore the permanent injunction pending appeal in

KneeBinding II. The court instituted a modified injunction on August 10, 2017. In October 2017,

KneeBinding filed a motion with this Court to restore the permanent injunction pending appeal,

which this Court denied.

¶ 19. Howell argues that there was no injunction in effect as of October 2017 because

this Court’s denial of KneeBinding’s motion to reinstate the permanent injunction also vacated the

trial court’s August 2017 modified injunction. We disagree. Vermont Rule of Civil Procedure

62(d)(2) provides the following:

When an appeal is taken from a final judgment granting, dissolving,
or denying an injunction, the court in its discretion may suspend,
modify, restore or grant an injunction during the pendency of the
appeal upon such terms as to bond or otherwise as it considers
proper for the security of the rights of the adverse party.

Rule 62 does not, however, “limit any power of the Supreme Court during the pendency of an

appeal to suspend, modify, restore, or grant an injunction.” V.R.C.P. 62(f).

¶ 20. Rule 62(d)(2) certainly gives this Court authority to suspend an injunction granted

by a trial court during the pendency of an appeal. The record indicates, however, that the Court

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did not exercise that authority in this case. As the trial court explained, the effect of this Court’s

denial of KneeBinding’s motion to restore the permanent injunction pending appeal was to keep

the August 2017 modified injunction in place. Accordingly, Howell is incorrect that there was no

injunction in place when he sent the emails to Progressive Plastics.

B. Notice

¶ 21. Howell also argues that his due process rights were violated because Judge Bryan

and other employees at the Lamoille Civil Division intentionally failed to give him notice of the

hearing where Judge Bryan considered KneeBinding’s motion to restore the permanent injunction

pending appeal. On August 3, 2017, Judge Bryan held a hearing on KneeBinding’s motion to

restore the permanent injunction pending appeal. Howell was not present. Following the court’s

August 10 decision instating a modified injunction, Howell filed a request for an emergency

hearing to void the amended injunction, arguing that he did not attend the August hearing because

he did not receive any notice. The court granted an additional hearing on August 29 where Howell

was present and “given the better part of an hour to make his presentation.” Howell’s “principal

point was that because his company and his patent had been ‘stolen’ from him by the Springer-

Millers, the company and his invention were essentially his and there was no need for the

injunction.”

¶ 22. Following the emergency hearing, the court issued an order declining to amend or

void the August 2017 injunction. The court explained that there was no explanation for why

Howell did not receive the notices of the August 3 hearing that the court sent:

The records show that notices were mailed, the Court Operations
Manager specifically remembers sending the notices, and she
checked off the intended recipients on the list as she did so.
Moreover, because Mr. Howell’s address in his in forma pauperis
application to the Vermont Supreme Court was different from his
mailing address in the court’s records, the Court Operations
Manager telephoned Mr. Howell to confirm the mailing address, and
he told her to send mail to his post office box, which she did.

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Nevertheless, the court explained that it granted Howell a full hearing, he was given significant

time to make his argument, and he did not convince the court to vacate the modified injunction.

¶ 23. As an initial matter, the record is devoid of any evidence that Judge Bryan or any

judiciary employee intentionally withheld notice of the August 3, 2017 hearing. As recounted

above, Judge Bryan specifically found that the court operations manager contacted Howell; Howell

directed the manager to send the notices to his post office box; and the notices were mailed.

Howell points to no evidence in the record indicating that these findings are clearly erroneous or

supporting his allegations that any misconduct occurred.

¶ 24. In any event, even though Howell was not present at the August 3 hearing, his due

process rights were not violated. “The fundamental requirement of due process is the opportunity

to be heard at a meaningful time and in a meaningful manner.” In re C.L.S., 2020 VT 1, ¶ 25, ___

Vt. ___, 225 A.3d 644 (quotation and alteration omitted). Although Howell was not present at the

August 3 hearing, the trial court granted an additional hearing where Howell was present and given

significant time to present his arguments. Given this additional hearing, Howell was provided a

meaningful opportunity to be heard.

C. Transcript Fraud

¶ 25. Howell alleges that Judge Bryan committed some kind of transcript fraud and

argues that, as a result, the transcripts of the proceedings are “materially compromised and

defrauded.” Some additional procedural history is necessary to evaluate this argument. On May

23, 2018, Judge Bryan found that Howell violated the August 2017 injunction but delayed the

question of sanctions while the appeal in KneeBinding II was pending. Howell immediately

appealed this contempt finding and subsequently filed a motion with this Court challenging the

accuracy of the transcripts.

¶ 26. In an order, we explained that we “construed his filing as challenging whether the

record truly disclose[d] what occurred in the superior court,” and pursuant to Vermont Rule of

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Appellate Procedure 10(f), we remanded to the trial court so the record could be corrected. See

V.R.A.P. 10(f) (“If any difference arises about whether the record truly discloses what occurred in

the superior court, the difference must be submitted to and settled by that court and the record

conformed accordingly.”). The trial court held one hearing on remand. On November 9, 2018—

before the trial court completed the proceedings to correct the transcripts—we dismissed Howell’s

appeal of Judge Bryan’s contempt finding, concluding that “[u]pon further jurisdictional

screening,” the May 23 contempt finding was not a final order because Judge Bryan did not address

the question of sanctions. Because we dismissed the appeal, we also terminated the proceedings

to correct the transcript.

¶ 27. On remand from KneeBinding II, Howell renewed his concerns about transcript

fraud at the August 2019 hearing before Judge Teachout. Judge Teachout determined, however,

that the transcript issue was no longer relevant, stating:

Well, this is from the—from a prior transcript issue. And in—on
November 9th of 2018 the Supreme Court—in the same entry order
of which the Supreme Court said the contempt and sanctions hearing
wasn’t over yet, and needed to come back to the trial court if the
plaintiff wished it, which is why we’re here, in that same order
dismissing the appeal that was before it at that time, this court said
we terminated the proceedings to correct the transcript pursuant to
V.R.A.P. 10(f). So that was the transcript issue that related to that
appeal. So that is over.

Howell responded that if the court awarded sanctions, he planned to “readdress the transcript fraud

issues [on] appeal.”

¶ 28. On appeal, Howell renews his allegations that Judge Bryan engaged in transcript

fraud. Rule 10(f) provides that “[i]f any difference arises about whether the record truly discloses

what occurred in the superior court, the difference must be submitted to and settled by that court

and the record conformed accordingly.” Vermont Rule 10(f) is almost identical to Federal Rule

of Appellate Procedure 10(e). Interpreting Rule 10(e), several federal courts have held that in the

absence of a motion to correct or modify the record, the transcripts are accepted as accurate. See,

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e.g., United States v. Sussman, 709 F.3d 155, 180 (3d Cir. 2013) (“[T]he government’s contention

that the transcript is not accurate does not take into account that in the absence of a motion to

correct or modify the record under Federal Rule of Appellate Procedure 10(e), we accept as

accurate the transcript of the district court proceedings.” (quotation and alteration omitted)); Gov’t

of the Virgin Islands v. Paniagua, 922 F.2d 178, 181 n.1 (3d Cir. 1990) (accepting “as accurate the

transcript of the district court proceedings” because defendant did not make “a motion to correct

or modify the record”).

¶ 29. Miles v. Klein, 250 F. App’x 739, 741 (7th Cir. 2007), is particularly instructive.

In that case, the plaintiff alleged that “the transcripts themselves [were] ‘tainted’ and ‘[did] not

correctly reflect the statements actually made during the status hearings held in the District

Court.’ ” Id. Because the plaintiff did not file a motion to correct the transcript below, the Seventh

Circuit concluded that it was “simply unable to consider in the first instance an argument that a

certified transcript from the district court [was] ‘tainted.’ ” Id.

¶ 30. Similarly, here, Howell alleges that Judge Bryan engaged in transcript fraud.

Although Howell previously filed a motion, which we construed as a motion under Vermont Rule

of Appellate Procedure 10(f), the underlying appeal was dismissed, and the proceedings to correct

the transcript were terminated. Howell did not file a motion to correct the record before Judge

Teachout, and applying the rule announced in Miles, “we are simply unable to consider in the first

instance an argument that a certified transcript . . . is ‘tainted.’ ” Id.

D. Validity of August 2017 Injunction

¶ 31. Howell challenges Judge Bryan’s contempt finding on the ground that the August

2017 injunction unconstitutionally interfered with his right to work as guaranteed by the

Fourteenth Amendment to the United States Constitution. In addition, he argues that the injunction

violated public policy because it prevented him from warning the public about the allegedly

defective nature of the ski bindings KneeBinding was producing. Furthermore, Howell argues that

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the collateral bar rule does not prevent him from collaterally challenging the August 2017

injunction because this is the first opportunity he had to challenge the injunction. Kneebinding

responds that Howell’s challenge to the validity of the August 2017 injunction is barred by claim

preclusion because in KneeBinding II, this Court determined that the March 2009 permanent

injunction was valid.

¶ 32. We conclude that the collateral bar rule does not prevent Howell from collaterally

challenging the validity of the August 2017 injunction. Although KneeBinding argues that

Howell’s challenge is claim precluded, the law-of-the-case is the relevant doctrine. We conclude

that Howell’s challenge to the August 2017 injunction is not controlled by the law-of-the-case

doctrine because this Court has never decided the validity of that injunction. Nevertheless, for the

same reasons articulated in KneeBinding II, we conclude that the August 2017 injunction was

neither unconstitutional nor violated public policy.

1. Collateral Bar Rule

¶ 33. “Under the collateral bar rule, a person is generally barred from collaterally

challenging the validity of a court order in defense to a contempt proceeding for violating the

order.” In re Carpenter, 2018 VT 91, ¶ 13, 208 Vt. 291, 197 A.3d 865; accord In re Duckman,

2006 VT 23, ¶ 10, 179 Vt. 467, 898 A.2d 734 (“The collateral bar rule provides that individuals

cannot challenge the validity of a court order by violating the order.”). “The rationale for this rule

is to protect the efficient administration of justice and to encourage litigants to follow court orders.”

Duckman, 2006 VT 23, ¶ 10.

¶ 34. “The rule is not without exception.” Id. ¶ 11. “[T]he collateral bar rule does not

apply where there was not an adequate and effective remedy to review the challenged ruling.”

Carpenter, 2018 VT 91, ¶ 15 (quotation omitted). Furthermore, “in some jurisdictions, orders that

are transparently invalid or frivolous are excepted from the collateral bar rule.” Duckman, 2006

VT 23, ¶ 11 n.4.

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 ¶ 35. Here, Howell appears to argue that the adequate-and-effective-remedy exception

applies, and we agree. To avoid the collateral bar rule, a “party must challenge the order by direct

appeal.” Allen v. Iowa Dist. Court for Polk Cty., 582 N.W.2d 506, 508 (Iowa 1998) (per curiam),

cited with approval in Duckman, 2006 VT 23, ¶ 10. Of course, this rule presumes that appellate

review of the order is available before a contempt proceeding. If appellate review is not available

prior to a contempt proceeding, there is not a remedy—never mind an adequate and effective one—

to review the challenged ruling. Cf. State v. Austin, 165 Vt. 389, 401, 685 A.2d 1076, 1084 (1996)

(holding that “a probationer is barred from raising a collateral challenge to a probation condition

that he was charged with violating, where the challenge could have been raised on direct appeal

from the sentencing order”).

¶ 36. For example, in Allen, a defendant refused to comply with a court order requiring

him to testify. 582 N.W.2d at 507. Although the defendant sought immediate appellate review,

discretionary review was denied, and he “was left with no recourse but to imperil himself by

testifying . . . or to violate the order compelling him to testify.” Id. at 509. The defendant refused

to testify and was held in contempt. On appeal of the contempt finding, the Iowa Supreme Court

held that the adequate-and-effective-remedy exception to the collateral bar rule applied because

the defendant had not been provided with appellate review of the court order compelling him to

testify prior to being held in contempt. Id.

¶ 37. Similarly, here, Howell has not yet been provided with appellate review of the

August 2017 injunction. This injunction was instituted, pursuant to Vermont Rule of Civil

Procedure 62, while the trial court’s August 2016 and subsequent interlocutory decisions were

pending on appeal in KneeBinding II. Although Judge Bryan found that Howell violated the

August 2017 injunction on May 23, 2018, Judge Bryan’s contempt finding did not become a final

order subject to appellate review until Judge Teachout applied sanctions in August 2019, which

was after this Court issued its decision in KneeBinding II. Similar to the defendant in Allen,

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Howell was not provided with appellate review of the August 2017 injunction prior to being held

in contempt. We accordingly hold that the collateral bar rule does not apply because there has not

been an adequate and effective remedy to review the August 2017 injunction.

2. Claim Preclusion

¶ 38. KneeBinding argues that Howell is precluded from challenging the validity of the

August 2017 injunction because this Court already decided in KneeBinding II that the March 2009

injunction was neither unconstitutional nor violated public policy. We disagree. Claim preclusion

is inapplicable in this case because there is not a final judgment in previous litigation.

¶ 39. “Under the doctrine of claim preclusion, a final judgment in previous litigation bars

subsequent litigation . . . .” Faulkner v. Caledonia Cty. Fair Ass’n, 2004 VT 123, ¶ 8, 178 Vt. 51,

869 A.2d 103. More specifically, “claim preclusion will preclude a claim from being litigated if

(1) a previous final judgment on the merits exists, (2) the case was between the same parties or

parties in privity, and (3) the claim has been or could have been fully litigated in the prior

proceeding.” Iannarone v. Limoggio, 2011 VT 91, ¶ 15, 190 Vt. 272, 30 A.3d 655 (quotation

omitted).

¶ 40. In this case, claim preclusion does not apply because there is not a “final judgment

in former litigation.” Berlin Convalescent Ctr., Inc., v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141,

143 (1992). The current issues on appeal are part of the same case that has been litigated over the

last two decades. There is accordingly no prior judgment that could have preclusive effect. Cf. In

re A.M., 2015 VT 109, ¶ 58, 200 Vt. 189, 130 A.3d 211 (Dooley, J., concurring) (distinguishing

between “another event in one case” and “issue preclusion,” which “involves the preclusive effect

of a judgment in one case on the resolution of an issue in another case”). Because KneeBinding

is arguing about the effect of previous decisions in the same—rather than a different—case, the

law-of-the-case is the applicable doctrine.

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 3. Law-of-the-case Doctrine

¶ 41. “Under the law-of-the-case doctrine, questions necessarily involved and already

decided . . . will not be revisited . . . .” Whippie v. O’Connor, 2011 VT 97, ¶ 7, 190 Vt. 600, 30

A.3d 1292 (mem.). The doctrine is a “rule of general application that a decision in a case of last

resort is the law of that case on the points presented throughout all the subsequent proceedings

. . . .” Coty v. Ramsey Assocs., Inc., 154 Vt. 168, 171, 573 A.2d 694, 696 (1990) (quotation and

alteration omitted). Simply put, “when this Court remands a case, our decision is the law of that

case on the points presented throughout all the subsequent proceedings.” In re FitzGerald, 2020

VT 14, ¶ 35, ___ Vt. ___, 229 A.3d 446 (quotation omitted).

¶ 42. KneeBinding argues that, under the law-of-the-case doctrine, the August 2017

injunction was neither unconstitutional nor violated public policy because in KneeBinding II, this

Court held that the March 2009 permanent injunction was neither unconstitutional nor violated

public policy. KneeBinding is certainly correct that this Court upheld the validity of the March

2009 permanent injunction in KneeBinding II. See 2018 VT 101, ¶ 64. Although substantially

similar, the August 2017 and March 2009 injunctions are different. The trial court vacated the

2009 permanent injunction in 2017 because it was concerned about Howell’s First Amendment

rights. The August 2017 injunction that the court instated was narrower; it did not include

paragraph two, and paragraph one was modified to avoid the trial court’s concerns that as

previously written it “likely would preclude . . . Howell’s employment as a sales person in a ski

shop selling ski bindings.” Howell’s challenge to the August 2017 injunction is not controlled by

the law-of-the-case doctrine because we have never directly decided the validity of that injunction.

4. Merits

¶ 43. Howell argues that the August 2017 injunction was invalid because it

unconstitutionally interfered with his right to earn a living and violated public policy. Although

Howell’s challenge is not controlled by the law-of-the-case doctrine, we agree with KneeBinding

16
that we addressed similar arguments in the context of the March 2009 permanent injunction. We

conclude that the August 2017 injunction does not violate Howell’s constitutional rights and does

not violate public policy for the same reasons we articulated in KneeBinding II.

¶ 44. First, Howell argues that the August 2017 injunction violated public policy because

it prevented him from warning the public about the allegedly defective nature of the ski bindings

that KneeBinding was producing. In KneeBinding II, Howell argued that he could not be held in

contempt for violating the March 2009 permanent injunction because “he was trying to warn the

public about a dangerous product.” 2018 VT 101, ¶ 64 n.12. We explained that this argument was

“unavailing” because “the injunction does not limit Howell from going to a governmental

investigative body—as he has previously—with a complaint if he has concerns.” Id. The same

reasoning applies with respect to the August 2017 injunction—it did not prevent Howell from

expressing his concerns about the ski bindings to the appropriate governmental regulators.

¶ 45. Howell also argues that the August 2017 injunction unconstitutionally interfered

with his right to earn a living. As an initial matter, there is no evidence in the record that the

August 2017 injunction interfered with Howell’s right to earn a living. It is unclear why his right

to earn a living required him to publish “false, disparaging, or derogatory communication[s]”

regarding KneeBinding or its principals.

¶ 46. Nevertheless, for similar reasons as we articulated in KneeBinding II, Howell has

contractually waived any right to earn a living that required him to violate the terms of the August

2017 injunction. In KneeBinding II, we held that the trial court abused its discretion in terminating

the 2009 permanent injunction because the “court’s conclusion that the injunction [was] an

unconstitutional prior restraint on speech” was based on an erroneous understanding of the law.

Id. ¶¶ 58, 61. We explained that “[p]rivate parties are free to contractually waive their First

Amendment rights,” and that, provided the waiver is “knowing, voluntary, clear, and unequivocal,

state action through judicial recognition and enforcement of the agreement is constitutional.” Id.

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¶¶ 61-62. Based on this standard, we concluded that judicial enforcement of the March 2009

permanent injunction did not “raise constitutional flags” because “the record evidence

demonstrate[d] that the stipulation providing for the injunction was voluntarily agreed to after day-

long negotiations—with counsel representing both parties—and it clearly identifie[d] the free

speech rights that Howell [was] relinquishing.” Id. ¶ 63.

¶ 47. Because the August 2017 injunction is a narrower version of the March 2009

permanent injunction, the same waiver reasoning applies here. “[C]onstitutional rights are subject

to contractual waiver,” Bowens v. N.C. Dep’t of Human Res., 710 F.2d 1015, 1018 (4th Cir. 1983),

and enforcement is lawful provided the waiver is knowing and voluntary, Lake James Cmty.

Volunteer Fire Dep’t v. Burke Cty., N.C., 149 F.3d 277, 280 (4th Cir. 1998). The record indicates

that Howell knowingly and voluntarily agreed to the permanent injunction, which prevented him

from publishing any “communication, oral or written, that relates to KneeBinding” to any vendor.

By doing so, Howell waived any constitutional right to earn a living that required him to violate

the terms of the injunction.

¶ 48. The August 2017 injunction similarly prohibited Howell from publishing “false,

disparaging, or derogatory communications . . . regarding KneeBinding, Inc.” to any vendors.

Thus, the conduct that Judge Bryan found Howell in contempt for—sending three emails to a

KneeBinding vendor, Progressive Plastics, making “false statements that he owned the

KneeBinding patents and that Progressive was infringing them”—falls well within the scope of

the permanent injunction, which is conduct that Howell knowingly and voluntarily agreed to

refrain from doing.

III. Judge Teachout’s Decision

¶ 49. Howell argues that Judge Teachout erred for several reasons. We address each

argument in turn.

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 A. Ambiguity

¶ 50. Howell argues that Judge Teachout’s decision did not make clear whether he

violated the August 2017 or March 2009 injunction. Given the varying injunctions imposed over

the course of the litigation, Howell argues that Judge Teachout’s failure to identify the relevant

injunctions creates ambiguity that requires her award of sanctions and attorney’s fees to be vacated.

¶ 51. As a factual matter, Judge Teachout’s August 2019 decision leaves no ambiguity

regarding the injunctions that were in effect, which injunctions Howell violated, nor the sanctions

that she imposed for each violation. Judge Teachout explained that on May 23, 2018, Judge Bryan

found Howell in violation of the August 2017 injunction. Because that injunction was no longer

in force, Judge Teachout declined to impose a fine based on that contempt finding; instead, she

issued a declaration. Judge Teachout then addressed KneeBinding’s January 2019 motion, which

argued that Howell violated the permanent injunction that this Court had restored in

KneeBinding II. In a footnote, Judge Teachout clarified that although KneeBinding’s motion

alleged that Howell violated the August 2017 injunction, KneeBinding withdrew that portion of

the motion because the alleged actions occurred when the August 2017 injunction was no longer

in effect. Judge Teachout found that Howell violated the permanent injunction by sending a letter

to Progressive Plastics on November 15, 2018, claiming that he owned the Kneebinding patents,

and she issued a sanction. The August 2019 decision leaves no ambiguity regarding which

injunctions were in effect nor the injunctions Howell violated.

B. Constitutionality of Permanent Injunction

¶ 52. Second, Howell argues that the permanent injunction is unconstitutional because it

interferes with his right to earn a living. We do not consider this argument because it falls within

the purview of the collateral bar rule. “Under the collateral bar rule, a person is generally barred

from collaterally challenging the validity of a court order in defense to a contempt proceeding for

violating the order.” Carpenter, 2018 VT 91, ¶ 13. “The rationale for this rule is to protect the

19
efficient administration of justice and to encourage litigants to follow court orders.” Duckman,

2006 VT 23, ¶ 10.

¶ 53. In this case, we already considered the constitutionality of the March 2009

permanent injunction in KneeBinding II. We concluded that the trial court abused its discretion

in terminating the permanent injunction because the record indicated that Howell had knowingly

and voluntarily relinquished his First Amendment rights. KneeBinding II, 2018 VT 101, ¶ 64.

Having already had an opportunity to challenge the validity of the permanent injunction on

appeal—where Howell could have raised his Fourteenth Amendment claim—the collateral bar

rule prevents Howell from challenging the validity of the permanent injunction in defense to Judge

Teachout’s contempt finding.

C. Testimony

¶ 54. Howell argues that Judge Teachout erred in excluding testimony during the August

2019 hearing that would have demonstrated how the permanent injunction interfered with his right

to earn a living. In his brief, Howell dedicates three pages to outlining the evidence he would have

introduced, which documents his background and expertise in the ski industry.

¶ 55. In April and August 2019, Judge Teachout conducted two days of hearings to

address three specific issues: (1) the attorney’s fees issue remanded in KneeBinding II; (2) the

proper sanction for Judge Bryan’s May 23, 2018 contempt finding; and (3) the motion for

contempt filed in January 2019. At the second hearing day in August, Howell called Christopher

Brown, an engineering professor, as a witness. The following exchange occurred:

Howell: Okay. So my first question relating to this matter pertains
to foundation. And I’d like you to traverse the interactions that you
have had firsthand with me from a foundational perspective, on my
work relating to ski bindings and ski bindings biomechanics?

[Opposing Counsel]: Objection, Your Honor, relevance.

The Court: It does seem to be a much, much broader subject matter
than the specific purpose of this hearing.

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 Howell: The purpose is foundation, Your Honor. I believe that
Amendment Fourteen of the U.S. Constitution allows me to pursue
my chosen line of work. I want to establish that I’ve worked in ski
bindings my entire adult life, forty-seven years. And I want to go
after that Amendment Fourteen. So I want to provide the evidence
that will show that’s a valid legal argument to pursue Amendment
Fourteen based on my extensive background and ski bindings work
related.
...

The Court: The objection is sustained. That is not sufficiently
focused to the issues for which this hearing is being held. It’s far
broader.

Following Brown’s testimony, Howell told the court he wanted to call Roland Bohme as an

additional witness and that Bohme’s testimony was relevant because it would “buttress” his

Fourteenth Amendment argument. Based on Howell’s offer, the court did not permit the

testimony.

¶ 56. “In matters of trial conduct and evidentiary rulings the trial court has wide

discretion.” State v. Richards, 144 Vt. 16, 19, 470 A.2d 1187, 1189 (1983). We accordingly

“apply a deferential standard of review to the trial court’s evidentiary rulings and will reverse its

decision only when there has been an abuse of discretion that resulted in prejudice.” State v.

Russell, 2011 VT 36, ¶ 6, 189 Vt. 632, 22 A.3d 455 (mem.) (quotation omitted). Judge Teachout

did not err in ruling that Brown’s and Bohme’s testimony was not relevant, especially considering

our holding that Howell was barred from challenging the March 2009 permanent injunction.

IV. Patent Ownership

¶ 57. Howell’s last argument is that he did not violate the August 2017 or March 2009

injunction because he either owns, or has a reasonable expectation that he owns, the KneeBinding

patents. We conclude that Howell’s arguments are either controlled by the law-of-the-case

doctrine or inadequately briefed.

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 ¶ 58. The ownership of the KneeBinding patents has been thoroughly litigated over the

past two decades. Howell invented and patented the ski binding in 2003. In December 2006,

Howell assigned the patents to the KneeBinding company, Kneebinding, Inc. About two years

later, when Howell was removed from his position as president of KneeBinding, he signed a

severance agreement, in which he agreed to release “any and all claims . . . of every kind and nature

that [he] ever had or now ha[s] against the Released Parties, including, but not limited to, any and

all claims arising out of or relating to [his] employment with and/or separation from the Company.”

In a section entitled “Entire Agreement,” the severance agreement further provided:

This letter agreement . . . contains and constitutes the entire
understanding and agreement between the parties hereto with
respect to [Howell’s] severance benefits and the settlement of claims
against [KneeBinding] and cancels all previous oral and written
negotiations, agreements, commitments and writings in connection
therewith.

¶ 59. In March 2009, KneeBinding filed suit against Howell, and he counterclaimed

alleging, among other things, that KneeBinding violated his patents. The trial court ruled that

Howell’s patent claim was barred by the release, which was affirmed on interlocutory appeal. On

appeal in KneeBinding II, Howell argued that he owned the KneeBinding patents because “the

‘entire agreement’ provision in the severance agreement cancel[ed] all prior contracts, and

therefore cancel[ed] all prior transaction agreements between himself and the Springer-Millers.”

2018 VT 101, ¶ 136 n.23. We described this theory as “patently false” because a plain reading of

the entire-agreement provision demonstrated “not that all past contracts between the parties were

cancelled, but rather that past agreements relating to severance benefits and the settlements of

claims were cancelled.” Id.

¶ 60. In the present appeal, Howell yet again argues that he owns the patents because the

entire-agreement section of his severance agreement cancelled the patent assignments. We do not

22
address this argument because “[u]nder the law-of-the-case doctrine, questions necessarily

involved and already decided . . . will not be revisited.” O’Connor, 2011 VT 97, ¶ 7.

Howell also argues that the patents will revert back to him because (1) KneeBinding is not

a bona fide corporation, as it does not provide shareholders with tax information and meeting

minutes; and (2) KneeBinding will be bankrupted by ongoing federal litigation, and bankruptcy

automatically cancels assignment. We do not address these arguments because they are

inadequately briefed. Vermont Rule of Appellate Procedure 28(a)(4) provides that an appellant’s

brief must contain an argument with “citations to the authorities, statutes, and parts of the record

on which the appellant relies.” “Mere naked statements unsupported by argument or citation of

authorities constitute inadequate briefing and merit no consideration.” Doyle v. Polle, 121 Vt.

335, 339, 157 A.2d 226, 230 (1960); see also Allen v. Dep’t of Emp’t Sec., 141 Vt. 132, 135, 444

A.2d 892, 893-94 (1982) (holding that appellant’s brief was inadequate under Rule 28 because it

did “not cite a statute, case, or any other authority”). Howell cites no authority to support his

theories as to why the patents have or will revert back to him. These arguments are accordingly

inadequately briefed, and we do not address them.2

Affirmed.

FOR THE COURT:

Associate Justice

2
Howell raises several other arguments that are also inadequately briefed, and do not
warrant consideration, including (1) that the recent death of a skier, who was possibly on ski
bindings produced by KneeBinding, provides a basis for cancelling the injunction; and (2) that
Judge Teachout colluded with KneeBinding’s attorney by having him draft the declaration that the
court issued as a sanction for the May 23, 2018 contempt finding. In addition, Howell seeks
punitive damages for what he refers to as KneeBinding’s “knowingly malicious behavior” over
the last eleven years and a lifetime injunction prohibiting the Springer-Miller’s from
communicating with him or Howell Ski Bindings. Because these arguments relate to issues outside
the scope of this appeal, we do not address them.
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