memphremagog rentals v. turnbaugh ( 2024 )

Vermont Superior Court
Filed 04/09/24
Orleans Unit
VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Orleans Unit Case N0. 24-CV—001 10
247 Main Street
NewportVT 05855
802-334—3305 EE
wwwvermontjudiciaryorg
Memphremagog Rentals v. Harmony Turnbaugh
ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 3)
Filer: Harmony Turnbaugh
Filed Date: March 12, 2024
The motion is DENIED.
Defendant Turnbaugh seeks to have the ejectment action pending against her dismissed on
two bases. First, she contends that Doug Spates, as a non—attorney cannot represent an LLC.
Second, she states that she did not receive the notice to terminate the tenancy served pursuant to 9
V.S.A. § 4467 on Turnbaugh’s mother and former co—tenant Eleanor Massey.
As to the first argument, while non-attorneys are generally not allowed to represent LLCs,
owners, under particular circumstances can when there is a showing that the individual has the
authority to represent the LLC, has the competency to represent the organization, and shares a
common interest. Vermont Ageflgl ofNat. Rex. v. Upper Val/e} Reg'l Lamfi‘ill Cmp, 159 Vt. 454, 458
(1992). There is also an element of financial hardship that the Court has generally applied in a looser
manner if the other three elements are reasonably met. In this respect, Mr. Spates has represented
his company, Memphremagog Rentals, LLC in numerous hearings and ejectment proceedings. The
Court finds no basis at this moment to revisit the permission it has previously given him to perform
that function. For these reasons, the Court denies Defendant’s motion to dismiss on the issue of
representation.
As to the issue of notice and whether Defendant Turnbaugh received actual notice of the
termination of tenancy, this appears to be a disputed factual issue that is best resolved at trial. There
are several unanswered factual questions including when Ms. Massey left the dwelling unit. Whether
Ms. Massey received the notice to terminate the tenancy in the dwelling unit. Whether Elia Spates’
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24—CV—001 10 Memphremagog Rentals v. Harmony Turnbaugh
testimony is consistent with a finding of actual notice, or whether the Spates had any reason to
understand that the notice of termination had not been delivered. While the Court cannot
determine these factual disputes on a motion to dismiss, these issues remain alive and may be raised
at the merits hearing in this matter.
Based on the foregoing, Defendant Turnbaugh’s motion to dismiss is Denied. The Court
shall set this matter for a status conference to address Defendant's request for mediation.
Electronically signed pursuant to V.R..E.l:. Qldl
Daniel Richardson
Superior Cou r1: Judge
Aprn 8, 2024
Entry Regarding Motion Page 2 of 2
24—CV—001 10 Memphremagog Rentals v. Harmony Turnbaugh