Straw v. Visiting Nurse Ass'n & Hospice

Robinson, J.,

¶ 28. concurring in part, dissenting in part. I concur with the majority’s thoughtful opinion concerning the merits of this case. I write separately to express my concern that the majority’s discussion of the preservation issue in this case is unmoored from the purposes of the rules of civil procedure and *164the practical realities of trials, and undermines the fairness and judicial efficiency those rules seek to promote.

¶ 29. The majority’s opinion here — that plaintiff’s objection to the court’s failure to instruct as to “just cause” was insufficient to preserve her claim despite the lengthy back and forth between the parties and the court at the charge conference shortly before the instructions, and despite her articulation of her objections at that time — follows a recent and worrisome trend. In State v. Vuley, this Court held that a party’s post-charge objection to the trial court’s instruction on the so-called “doctrine of chances” was insufficient to preserve a defendant’s objection to the instruction because defense counsel failed to reiterate the various bases for the objection post-charge — even though shortly before, at the charge conference, the court and counsel had engaged in a lengthy exchange during which defendant explicated the bases for the objection multiple times. 2013 VT 9, ¶¶ 36-39, 193 Vt. 622, 70 A.3d 940. I will not reiterate my lengthy review of our prior cases concerning the preservation requirements of V.R.C.P. 51(b) and V.R.Cr.P. 30. See id. ¶¶ 55-63 (Robinson, J., dissenting). Suffice it to say that I believe that the Court’s opinion in Vuley went much further than any prior case in precluding review of an objection to a jury instruction on the basis of nonpreservation. Although the majority’s analysis in this ease relies upon V.R.C.P. 51(b), as opposed to V.R.Cr.P. 30, the underlying issue is the same: How detailed must a post-charge objection to an instruction be in order to preserve that objection? The majority’s analysis here suffers from the same flaws as in Vuley.

¶ 30. The majority essentially holds that if a party does not reiterate the specific basis or bases for the objection post-charge, the objection, or the basis or bases of the argument, are not preserved — without regard to what has come before. The allure of this approach is that it follows a relatively bright line. It also makes our job as appellate reviewers easier insofar as we need only look to one place in a transcript to learn all we need to know about the preserved objections to jury instructions. But the downsides to this construction of V.R.C.P. 51(b) are that it does not conform to prevailing practices, potentially gums up the works at an already hectic stage of a trial, and unjustly precludes appellate review of arguments that were clearly articulated below, and understood and carefully rejected by the trial judge.

¶ 31. This last point is critical, as we have recognized that the purpose of the post-charge objection requirement is to give the *165trial court “one last opportunity to avoid an error.” Id. ¶ 59; see also State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992). In this case, the trial court well understood the substance of plaintiff’s objection, and its statements reflect thoughtful consideration and rejection of plaintiff’s argument. When the trial court, after initially proposing to instruct on “just cause,” indicated its intention to eliminate such an instruction, plaintiff promptly objected. Plaintiff argued that the proposed instruction ran afoul of a whole line of cases that, in plaintiffs view, support the notion that once a jury concludes that an employer has modified an .at-will arrangement, the employer can only terminate for “just cause.” Plaintiff cited several cases in the context of that discussion. The trial court explained why it rejected plaintiffs view, and the parties and the trial court engaged in an extended exchange of views on the subject, accounting for several trial transcript pages. The trial court maintained its position and ultimately delivered the instruction essentially as proposed and discussed in the charge conference. Less than an hour and a half after the charge conference, plaintiff reiterated her previous objections concerning “just cause.” In this context, the post-charge objection was sufficient to put the court on notice that plaintiff still objected to the failure to include a “just cause” instruction, and of the basis for the plaintiffs objection. The court had ample opportunity to change course. Plaintiff complied with the preservation requirement of V.R.C.P. 51(b) with respect to the central argument urged on appeal.

¶ 32. I note that this is not a case in which a party made only a generalized or cryptic post-charge objection that failed to make her position clear to the court. See, e.g., State v. Massey, 169 Vt. 180, 188-89, 730 A.2d 623, 629 (1999). Nor is this a case in which plaintiffs arguments on appeal deviate substantially from the arguments set forth below. See, e.g., State v. Covino, 163 Vt. 378, 381, 658 A.2d 916, 918 (1994). If there was not preservation here, then I fear that careful litigants throughout the state, who believe they are being respectful of the court’s and jury’s time by refraining from rehashing extended statements of their objections and supporting arguments at a post-charge side bar — when the trial court has clearly heard, absorbed, and rejected those points already, the record reflects the arguments underlying the objections, and the jury is ready to begin deliberating — will find themselves denied appellate review of their objections on the basis *166of an overly zealous application of V.R.C.P. 51(b) that does not promote the rule’s underlying purposes.

¶ 33. For these reasons, I respectfully dissent from ¶¶ 13-14 of the majority’s opinion.