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Gettis v. Green Mountain Economic Development Corp.10/28/2005
hat a tortious act-not simply the continuing ill effects of prior tortious acts-fall within the limitation period. See Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999); Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981); Maslauskas v. United States, 583 F. Supp. 349, 351 (D. Mass. 1984); Feltmeier, 798 N.E.2d at 85; Jackson Cty. Hog Producers. v. Consumers Power Co., 592 N.W.2d 112, 116 (Mich. Ct. App. 1999). The necessary tortious act cannot be the failure to right a wrong committed outside the limitation period. See Fitzgerald v. Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977). If it were, the tort in many cases would never accrue because the defendant could undo all or part of the harm.
29. Here, plaintiffs identify no acts of defendants that occurred within the limitation period. Instead, they identify the failure to act-that is, the failure to rescind the default during the fifteen-day payment period. We note, however, that the declaration of default could have been waived even after the payment period and did not itself inflict an additional injury on plaintiffs. Indeed, we question whether the default declaration itself could be characterized as a tortious act rather than an effect of plaintiffs' financial situation caused, in plaintiffs' view, by defendants' acts. Because defendants committed no tortious act within the limitation period, plaintiffs' claims for personal injury damages would be barred even if we adopted the continuing tort doctrine.
30. The second issue involves plaintiffs' claims for economic damages. The superior court also ruled that these could not be maintained, but for a different reason. Defendants' expert, an economic consultant, concluded in his report that plaintiffs' business had failed because its revenues were well below expectations and not because of the credit card debt. Based on that report, which was not directly controverted by plaintiffs, the court concluded that plaintiffs were unable to show a causal link between their legal theories and their injury, and granted summary judgment on that basis. The court reached that result for counts one through five of plaintiffs' complaint, but we see no reason why it does not apply to all eight counts. Although the counts express various contract and tort theories, they are all based on the common allegation that plaintiffs' business failure and resulting damages were caused by defendants' direction, through their agent, to incur credit card debt to open the delicatessen, followed by the failure to extend additional credit to pay the credit card debt and reduce the interest rate.
31. Defendants' summary judgment position was that plaintiffs could not establish causation. See B.B. & J. v. Bedell, 156 Vt. 203, 205, 591 A.2d 50, 51-52 (1991) (where plaintiff claimed that business failure was due to lessor's failure to supply potable water, it had the burden to prove causation). That position was based on a report of defendant's expert witness, economist Richard Heaps. The Heaps report-based upon plaintiffs' tax returns from 1997 and 1998, an accountant's report from 1997, and plaintiffs' 1999 bankruptcy filing-showed that plaintiffs' business had failed because of insufficient revenues, and would have failed even without the additional credit card debt. The witness calculated plaintiffs' cash inflows and outflows, including both personal and business expenses. The economist made his conclusions after "excluding all payments that could have been associated with additional borrowing costs." He determined that "after two years [plaintiffs] would have had a cumulative personal deficit of $29,073." Thus, in the economist's view, even if everything had gone as planned without the additional credi
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