Rule 9.Pleading special matters

Reporter’s Notes: This rule is identical to Federal Rule 9, except that subdivision (h) of the federal rule, pertaining to admiralty proceedings, is omitted. Subdivisions (a) to (g) of the federal rule were adopted with two changes as 12 V.S.A. §§ 1026-1032 (now superseded). The changes have now been restored. 12 V.S.A. § 1026 did not include the final sentence of Rule 9(a) requiring that lack of capacity be raised by specific negative averment, a practice that presumably would have applied even in the absence of specific provision. See 5 Wright & Miller, Federal Practice and Procedure § 1294 (1969). Note that where the question is the capacity of an infant or incompetent, Rule 17(b) gives the court power to appoint a guardian ad litem or make other orders to protect such party. 12 V.S.A. § 1032 provided that items of special damage might be “generally,” rather than “specifically,” stated. This difference is more apparent than real. Rule and statute both require that the specific items of damage be at least nominally pleaded and the language of the federal rule, now adopted for Vermont, has been liberally interpreted (in accordance with the standards of Rule 8) to require only that degree of specificity sufficient to permit the opposing party to prepare his responsive pleading and defense, bearing in mind the availability of discovery as a means of obtaining any further information required. See 5 Wright & Miller § 1311. Annotations Fraud. Issues tried by consent. Special damage. Time and place. Fraud. Plaintiff's general assertion that he was provided with “misleading financial data,” without a description of the particular information or data that was misleading, did not support his claim of fraudulent inducement because it was not pled with particularity. Lynn v. Slang Worldwide, Inc., 2025 VT 30, — Vt. —, 342 A.3d 879, 2025 Vt. LEXIS 67 (Vt. 2025). Investors failed to plead with sufficient particularity their security fraud claim against the individual defendants, employees of the State to survive a motion to dismiss because it was insufficient to broadly allege that defendants made fraudulent or deceitful statements to induce the investors to invest in the projects. Sutton v. Vt. Reg’l Ctr., 2019 VT 71A, 212 Vt. 612, 38 A.3d 608 (2020). Plaintiffs had failed to plead fraud against any individual defendants with sufficient particularity, as their complaint did not specify which statements or acts, by which defendants, violated the Vermont Uniform Securities Act. Sutton v. Vt. Reg’l Ctr., 2019 VT 71A, 212 Vt. 612, 38 A.3d 608 (2020). One of the primary objectives of this rule’s requirement that circumstances constituting fraud be pled with particularity is to provide the defendant with sufficient information to enable him or her to effectively prepare a response. Silva v. Stevens, 156 Vt. 94, 589 A.2d 852, 1991 Vt. LEXIS 42 (1991). Requirement that allegations of fraud be stated with particularity in pleadings means only that all of the elements be specifically pleaded, not that fraud be alleged by name. Cheever v. Albro, 138 Vt. 566, 421 A.2d 1287, 1980 Vt. LEXIS 1386 (1980). In action for fraud, failure by buyer to aver essential element of seller’s knowledge of fraud was a fatal defect in complaint; trial court properly dismissed action. Ranney v. Munro, 138 Vt. 523, 418 A.2d 862, 1980 Vt. LEXIS 1356 (1980). Fraud must be alleged with particularity and it must consist of some affirmative act, or of concealment of facts by one with knowledge and a duty to disclose. Standard Pkg. Corp. v. Julian Goodrich Archs., 136 Vt. 376, 392 A.2d 402, 1978 Vt. LEXIS 632 (1978). Issues tried by consent. Rule requiring that circumstances constituting fraud be pled with particularity is subject to effect of rule requiring that issues tried by express or implied consent be treated as if raised in the pleadings. Silva v. Stevens, 156 Vt. 94, 589 A.2d 852, 1991 Vt. LEXIS 42 (1991). Notwithstanding that express count of fraudulent concealment was dismissed on defendant home sellers’ motion for directed verdict, evidence of defendants’ concealment of material facts was properly admitted and considered by the jury as having been tried by consent in light of defendants’ failure to object, and therefore pleadings would be treated as if they had raised issues tried. Silva v. Stevens, 156 Vt. 94, 589 A.2d 852, 1991 Vt. LEXIS 42 (1991). Where defendant’s counterclaim of breach of fiduciary duty did not plead that special damages of lost profits arose from such breach, and due to reasonable uncertainty as to whether trial court’s grant of directed verdict in favor of plaintiff on breach of fiduciary duty claim encompassed entire claim or only punitive damages portion, fact that testimony regarding lost profits was admitted at trial could not be construed to mean that the question was tried by consent, under procedural rule that bars recovery of special damages not specifically pled. Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt. 473, 587 A.2d 77, 1990 Vt. LEXIS 258 (1990). Special damage. Lost profits are special damages and, as such, must be specifically stated in the pleading. Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt. 473, 587 A.2d 77, 1990 Vt. LEXIS 258 (1990). Where acreage deficiency in amount of land conveyed by warranty deed necessitated survey and redesign of property development at grantees’ expense, cost of the survey constituted damages which were a direct and natural result of the breach and the damages were thus general not special, and could be recovered even though not specifically pleaded. Pareira v. Wehner, 133 Vt. 74, 330 A.2d 84, 1974 Vt. LEXIS 288 (1974). Time and place. A defendant can properly raise a statute-of-limitations defense in a motion to dismiss under V.R.C.P. 12(b)(6) (failure to state a claim upon which relief can be granted), as, under subdivision (f) of this rule, averments of time and place are material for testing the sufficiency of a complaint. Fortier v. Byrnes, 165 Vt. 189, 678 A.2d 890, 1996 Vt. LEXIS 46 (1996).