Anticipatory Repudiation by Contractors and the Publication Element in Defamation:
Commentary on Dever v. Lee (Vt. Sup. Ct., Nov. 7, 2025)

I. Introduction

This commentary examines the Vermont Supreme Court’s entry order in Dever v. Lee, Case No. 25-AP-135 (Nov. 7, 2025), affirming dismissal of a self-represented plaintiff’s breach-of-contract and defamation claims at the Rule 12(b)(6) stage.

The case arises from a short-lived residential construction relationship between plaintiff Zygmunt Dever, a builder, and defendant Amalia Lee, a homeowner preparing her property for sale. Their written agreement called for fifteen specified tasks for a flat labor fee. When plaintiff discovered what he believed were serious structural and drainage problems with the deck, he refused to proceed under the existing contract unless defendant agreed to additional work (a “sixteenth task”) and to pay more. Defendant declined, terminated his services, and allegedly threatened “character assassination.” Plaintiff sued.

The key legal issues before the Vermont Supreme Court were:

• Whether a contractor who refuses to perform under an existing written agreement unless the other party agrees to extra work and additional payment has, as a matter of law, repudiated the contract, thereby excusing the other party’s performance and defeating a breach-of-contract claim.
• Whether allegations that a defendant threatened “character assassination,” without factual allegations that she actually published a false, defamatory statement to any third person, state a cognizable claim for defamation.
• More broadly, what level of factual specificity is required to survive a Vermont Rule of Civil Procedure 12(b)(6) motion when alleging breach of contract and defamation, particularly by a self-represented litigant.

Although this is an entry order by a three-justice panel and therefore explicitly “not to be considered as precedent before any tribunal,” it usefully illustrates how established Vermont doctrines of anticipatory repudiation and defamation pleading requirements are applied in a typical contractor–homeowner dispute, and highlights procedural constraints on appellate review.

II. Summary of the Opinion

The Vermont Supreme Court affirmed the Windham Unit, Civil Division’s dismissal of the complaint under Rule 12(b)(6). The Court held:

1. Breach of Contract – Anticipatory Repudiation: Plaintiff’s own factual allegations showed that he refused to perform his obligations under the existing, signed contract unless defendant agreed to a modification adding a new task (deck footings and drainage work) and associated extra labor costs. Under Vermont law, this conduct constitutes repudiation of the contract, which discharges the nonrepudiating party (here, the homeowner) from her performance obligations. Because plaintiff repudiated, he could not plausibly allege that defendant breached.
2. Defamation – Failure to Allege Publication: The complaint did not allege that defendant actually made any false or defamatory statement about plaintiff to any third person. Plaintiff alleged only that defendant threatened him with “character assassination” and that other people had spoken to defendant about him. Absent factual allegations that defendant published a defamatory statement to at least one third person, the defamation claim failed as a matter of law.
3. Record on Appeal and Rule 12(b)(6) Scope: The Court refused to consider new factual assertions included in plaintiff’s appellate brief but not part of the trial court record. On a Rule 12(b)(6) appeal, the reviewing court examines only the “bare allegations of the complaint,” assuming their truth and drawing reasonable inferences in plaintiff’s favor, to decide whether any set of facts consistent with those allegations would entitle plaintiff to relief.
4. Motion to Amend – Futility: The trial court had considered plaintiff’s proposed amended complaint along with the original and concluded that amendment would be futile because the same deficiencies remained. The Supreme Court noted that plaintiff did not challenge that ruling on appeal, and, in any event, even considering the proposed amendment, no viable claim was alleged.

Accordingly, the Court concluded that plaintiff failed to state legally sufficient claims and affirmed the dismissal.

III. Factual and Procedural Background

A. Factual Allegations in the Complaint

The Supreme Court’s review was confined to the complaint (including the proposed amended complaint) and its factual allegations, assumed true for purposes of Rule 12(b)(6).

1. The parties and their agreement:
   • Plaintiff is a builder providing design, construction, renovation, and restoration services.
   • In early August 2024, defendant contacted plaintiff to request help with home repairs to prepare her house for sale.
   • Defendant showed plaintiff her home and described the work she wanted done.
   • On August 15, 2024, the parties signed a written contract under which plaintiff would perform fifteen specified tasks for $2400 in labor costs, with $800 payable at commencement. Defendant paid the $800.
2. Deck work and proposed modification:
   • One contractual task stated: Remove and replace decking on rear of home. Adjust existing wood frame to slope deck away from house.
   • After removing the deck boards, plaintiff concluded that the existing deck lacked an appropriate foundation and adequate drainage.
   • He then proposed a sixteenth task: building footings and a foundation for the deck and installing a foundation drain, for additional labor costs beyond the $2400 agreed amount.
3. Breakdown of the relationship:
   • Defendant rejected the proposed additional work and insisted that plaintiff continue with the work as described in the existing contract.
   • Plaintiff refused, believing his proposal was “best” for defendant and future occupants.
   • The parties exchanged emails. Defendant stated that plaintiff’s “vehement” insistence on the additional work caused her to fear physical harm and said she would respond with character assassination.
   • On August 26, 2024, defendant told plaintiff she no longer wanted his services.

B. Procedural History

1. Complaint and claims:
   • In September 2024, plaintiff filed a civil complaint alleging:
     • Breach of contract, presumably asserting that defendant wrongfully terminated the contract.
     • “Libel, slander, and defamation” (treated by the Court as a single defamation claim).
   • As the Court noted, under Lent v. Huntoon, the generic tort is defamation; libel and slander are simply written and oral forms of the same cause of action.
2. Rule 12(b)(6) motion to dismiss:
   • Defendant moved to dismiss under V.R.C.P. 12(b)(6), arguing that the complaint did not allege facts sufficient to state a claim for either breach of contract or defamation.
3. Motion to amend:
   • While the motion to dismiss was pending, plaintiff sought leave to file an amended complaint.
   • The trial court considered both the original and proposed amended complaints in deciding the 12(b)(6) motion.
   • It dismissed the action and denied leave to amend on the ground of futility—the proposed amendment suffered the same defects as the original.
4. Appeal:
   • Plaintiff, self-represented, appealed to the Vermont Supreme Court.
   • The Supreme Court reviewed the dismissal de novo (without deference) and affirmed, concluding that:
     • On the contract claim, plaintiff’s own allegations established his anticipatory repudiation.
     • On the defamation claim, plaintiff failed to allege any defamatory publication by defendant.

IV. Legal Analysis

A. The Rule 12(b)(6) Standard and Pleading Requirements

The Court began by articulating familiar Vermont standards governing a Rule 12(b)(6) motion to dismiss for failure to state a claim. This framework is critical because it shapes what a plaintiff must allege to avoid early dismissal.

1. Authorities cited

• Colby v. Umbrella, Inc., 2008 VT 20, ¶ 14, 184 Vt. 1 – A Rule 12(b)(6) motion tests whether an insufficient cause of action has been pleaded, i.e., whether essential elements are missing.
• Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420 – Establishes de novo review of 12(b)(6) dismissals: the Supreme Court applies the same standard as the trial court.
• Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575 (mem.) – Dismissal is proper when it is beyond doubt that there are no facts or circumstances, consistent with the complaint, that would entitle the plaintiff to relief.
• Dernier v. Mortgage Network, Inc., 2013 VT 96, ¶ 23, 195 Vt. 113 – The Court assumes all factual allegations in the complaint are true and draws reasonable inferences in the plaintiff’s favor.
• Vitale v. Bellows Falls Union High School, 2023 VT 15, ¶ 28, 217 Vt. 611 – Clarifies that courts are not required to accept conclusory allegations or legal conclusions masquerading as factual conclusions.
• Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605 (mem.) – When a complaint relies on a document, the document merges into the pleadings and may be considered on a 12(b)(6) motion; however, here plaintiff’s referenced exhibits were not actually filed and thus could not be considered.

2. Application in Dever v. Lee

Applying these principles, the Court emphasized:

• Its review was limited to the complaint and the proposed amended complaint, as those were the operative pleadings considered below.
• It could not consider facts raised for the first time in plaintiff’s appellate brief, citing Hoover v. Hoover, 171 Vt. 256, 258 (2000) (no consideration of facts not in the record).
• The question was not whether plaintiff could ultimately prove his allegations, but whether the allegations, taken as true, set forth all essential elements of the causes of action claimed.
• Allegations that merely state that defendant “breached” or “defamed” plaintiff, without factual support, constitute legal conclusions that the court need not accept.

This framework is particularly unforgiving when, as here, the plaintiff’s own factual narrative establishes a legal bar to recovery—anticipatory repudiation on the contract claim, and absence of publication on the defamation claim.

B. Breach of Contract and Anticipatory Repudiation

1. The governing principles

The Court grounded its contract analysis in Vermont precedent and the Restatement (Second) of Contracts § 250.

• Margolis v. Daily Direct LLC, 2023 VT 20, ¶ 8, 218 Vt. 31 – Reaffirms that when one party repudiates a contract before the time for performance, the nonrepudiating party is generally discharged from further obligations. Anticipatory repudiation thus precludes a claim that the other party breached by ceasing performance.
• Record v. Kempe, 2007 VT 39, ¶ 15, 182 Vt. 17 – Defines repudiation in line with Restatement § 250: a party repudiates a contract when that party “explicitly or implicitly represents that he cannot or will not perform his obligations under the contract.”
• Restatement (Second) of Contracts § 250 & cmt. b (1981) – Adds that language that under a fair reading amounts to a statement of intention not to perform except on conditions which go beyond the contract constitutes a repudiation.

2. What is “anticipatory repudiation” in plain terms?

Anticipatory repudiation occurs when, before the time for performance is due, one party clearly indicates that they will not perform according to the contract’s terms. This can happen by:

• Flatly refusing to perform; or
• Saying, in substance, “I will perform only if you agree to additional or different terms not in the contract” (e.g., more money, more work, changed deadlines).

Once a party repudiates, the other party is generally entitled to treat the contract as terminated and is excused from continuing to perform or to tender performance. The repudiating party usually cannot then claim the other party breached by refusing to proceed.

3. Application to the builder–homeowner dispute

The Supreme Court accepted as true that:

• The parties had a valid written contract for fifteen enumerated tasks for a fixed labor price ($2400).
• Pursuant to that contract, plaintiff began the deck work described in the written agreement.
• After discovering what he saw as structural and drainage problems, plaintiff proposed modifying the contract to add a sixteenth task (footings, foundation, foundation drain) for additional compensation.
• Defendant expressly rejected the proposed modification and demanded that plaintiff proceed under the contract as written.
• Plaintiff refused to proceed with the deck work unless his new proposal was accepted.

Given these allegations, the Court concluded:

“Here, the complaint alleges that plaintiff refused to perform his obligations under the parties’ contract unless defendant agreed to his proposed modification.”

Under Record v. Kempe and Restatement § 250, that refusal amounts to an anticipatory repudiation because plaintiff communicated an intention not to perform the contract except on conditions going beyond the original agreement (i.e., extra tasks and extra payment).

Consequently, applying Margolis:

“The trial court correctly recognized that one party’s repudiation of a contract before the time for performance generally discharges the nonrepudiating party from his or her own obligations thereunder.”

Defendant, having insisted on performance per the original contract, was entitled to treat plaintiff’s refusal as a repudiation and terminate the relationship. Thus, there was no plausible factual basis on which defendant could be considered the breaching party.

4. Effect on plaintiff’s breach-of-contract claim

The core element of breach of contract is that the defendant failed to perform a contractual duty. Here:

• The only nonperformance alleged by plaintiff was that defendant terminated his services after he refused to perform under the original terms.
• But under settled law, defendant had a legal right to stop performance after plaintiff repudiated; her termination was not a breach, but a legally permitted response.

The Supreme Court noted that plaintiff did not meaningfully explain how the trial court erred in reaching this conclusion. Given the governing principles, the Court held that plaintiff’s own allegations defeated his contract claim as a matter of law.

C. Defamation: Publication and Essential Elements

1. Defamation framework in Vermont

The Court drew on Vermont’s well-established defamation jurisprudence, with particular reliance on Skaskiw v. Vermont Agency of Agriculture, 2014 VT 133, 198 Vt. 187, and Lent v. Huntoon, 143 Vt. 539 (1983).

• Lent v. Huntoon, 143 Vt. 539 (1983) – Clarifies that defamation comprises the complementary torts of libel (written) and slander (spoken). Whatever the form, the same general elements apply.
• Skaskiw v. Vermont Agency of Agric., 2014 VT 133, ¶ 8, 198 Vt. 187 – Articulates the six basic elements of defamation in Vermont:
  1. A false and defamatory statement concerning the plaintiff.
  2. Some negligence or greater fault in publishing the statement.
  3. Publication of the statement to at least one third person.
  4. Lack of privilege in the publication.
  5. Special damages, unless the statement is actionable per se.
  6. Some actual harm to the plaintiff.

2. What is “publication” in defamation?

Publication, in the defamation context, does not mean printing in a newspaper or online (though that qualifies). It simply means that the allegedly defamatory statement was:

• Communicated to at least one person other than the plaintiff.

Crucially:

• The defendant must be the one who made or caused the statement to be made.
• It is not enough that:
  • other people told the defendant things about the plaintiff; or
  • the defendant threatened to say bad things in the future but never did.

Without publication, there is no defamation claim, regardless of the plaintiff’s sense of insult or the harshness of the defendant’s private language.

3. Plaintiff’s allegations and the Court’s assessment

Plaintiff claimed “libel, slander, and defamation,” but, as the Court observed, the complaint did not allege:

• Any specific statement made by defendant about plaintiff.
• Any occasion on which defendant actually communicated a false statement about plaintiff to a third person.

Instead, plaintiff alleged:

• That defendant, in emails, complained of his conduct, said his insistence on additional work caused her to fear harm, and threatened character assassination.
• That unnamed third parties had spoken to defendant about him.

The Supreme Court held:

“The court further held that plaintiff failed to state a claim for defamation because he had not alleged that defendant made any false or defamatory statement about him to a third person, only that other individuals had told defendant about plaintiff.”

On appeal, plaintiff did not show how this conclusion was erroneous. Specifically, he failed to point to any allegations satisfying the publication requirement.

The Court therefore concluded that the complaint and proposed amendment did not plead the third element of defamation (publication to at least one third person) and that the defamation claim was properly dismissed.

D. Limits of Appellate Review: Facts Outside the Record

The opinion underscores a key appellate principle: the Supreme Court’s review is confined to the record developed below.

• Hoover v. Hoover, 171 Vt. 256, 258 (2000) – On appeal, the Court cannot consider facts not in the record; it reviews only what was before the trial court.

In Dever, plaintiff’s appellate brief attempted to supplement or alter the factual narrative with new assertions not contained in his complaint or proposed amended complaint. The Court:

• Refused to consider these new factual assertions.
• Stated that its task was to determine whether the bare allegations of the complaint were sufficient to state a claim.

This illustrates a recurring pitfall for self-represented litigants: appellate courts are not forums for retrying the facts on a new record. If the necessary facts are not pleaded or introduced in the trial court, they generally cannot be used later to rescue a case on appeal.

E. The Denial of Leave to Amend as Futile

Although not the main focus of the Supreme Court’s reasoning, the procedural posture concerning the motion to amend is instructive:

• The trial court examined plaintiff’s proposed amended complaint alongside the original.
• It found that the proposed amendment did not cure the fundamental substantive defects:
  • On the contract claim, plaintiff still alleged facts amounting to repudiation.
  • On the defamation claim, he still failed to allege any defamatory publication by defendant.
• It therefore denied leave to amend on grounds of futility—even if allowed, the amended complaint would still be subject to dismissal.
• On appeal, plaintiff did not specifically challenge this futility determination, effectively leaving the dismissal of the amended complaint unchallenged.

The Supreme Court, in turn, accepted that even when the proposed amendment is considered, the pleading remained insufficient. This reinforces that:

• Leave to amend is not automatic;
• Amendments must actually fix the legal defects, not simply restate or elaborate the same flawed theory.

V. Precedents and Doctrinal Context

A. Rule 12(b)(6) and Modern Pleading Standards in Vermont

Vermont’s approach to Rule 12(b)(6) is somewhat more generous to plaintiffs than the strict federal “plausibility” test under Twombly/Iqbal, but the Vermont courts still require:

• Allegation of each essential element of the claim.
• More than purely conclusory legal assertions.

The decisions in Colby, Bock, Dernier, and Vitale collectively reflect the careful balance between:

• Protecting plaintiffs from premature dismissal when they may be able to prove their case; and
• Screening out meritless claims where, even assuming all facts pleaded are true, relief is legally unavailable.

Dever v. Lee is squarely in the latter category: the complaint’s own narrative of events negated an essential element (breach by defendant) and failed to allege another (publication).

B. Anticipatory Repudiation: Margolis, Record, and the Restatement

The Court’s contract analysis sits comfortably within long-standing contract doctrine:

• Restatement § 250 supplies the conceptual definition of repudiation; Vermont has adopted this through Record v. Kempe.
• Margolis then applies this definition, emphasizing the consequence: repudiation by one party discharges the other’s remaining duties.

Dever applies this framework in a typical construction setting: a contractor discovers unforeseen conditions and insists on additional work and compensation before continuing. The opinion confirms that if the contractor categorically refuses to perform the contract as written unless the owner agrees to changed terms, that refusal can amount to repudiation.

C. Defamation: Lent, Skaskiw, and Pleading Essentials

Vermont’s defamation law, as summarized in Lent and Skaskiw, has clear contours:

• The elements are well-defined and relatively strict.
• Defamation is not established by:
  • vague feelings of reputational harm,
  • mere insults spoken only to the plaintiff, or
  • threats of future disparagement that never occur.
• Specifics matter: plaintiffs must plead a concrete false statement, its communication to a third party, and some resulting harm.

Dever underscores that self-labeling a claim as “libel” or “slander” does not supply missing factual allegations. The pleading must articulate:

• What was said or written;
• Why it is false;
• To whom it was communicated (beyond the plaintiff); and
• How it caused harm (or fell into a category actionable per se).

VI. Simplifying Key Legal Concepts

A. Anticipatory Repudiation (in everyday terms)

Imagine two people agree in writing: “You will do X, Y, and Z for $2,400.” Later, before finishing the work, the service provider says: “I will not do X, Y, and Z unless you also pay me extra to do Q.” If the customer refuses and the provider then refuses to continue under the original terms, the law treats this as:

• The provider having backed out of the original deal first.

As a result:

• The customer is no longer required to keep paying or to stick with the contract.
• The provider generally cannot sue the customer for “breach” when the customer walks away, because the provider’s own refusal to perform triggered the breakdown.

B. Rule 12(b)(6) – “Failure to State a Claim”

A Rule 12(b)(6) motion is a legal test asking: “Even if everything the plaintiff alleges is true, do they describe a situation where the law would allow them to win?” If the answer is “no,” the case is dismissed early, without evidence or trial.

Importantly:

• The judge is not deciding who is telling the truth; they assume the plaintiff’s story is accurate.
• The question is only whether that story includes the necessary legal ingredients for a particular claim.

C. Defamation, Libel, and Slander

Defamation is harm to a person’s reputation caused by false statements. It takes two main forms:

• Libel: written or otherwise recorded (print, online, etc.).
• Slander: spoken or oral statements.

Regardless of label, the plaintiff usually must show:

1. A specific statement that is false and damaging.
2. That the defendant was at least negligent in making or sharing it.
3. That the statement was shared with someone else (publication).
4. That the defendant had no legal privilege to say it.
5. That the plaintiff suffered some kind of harm (or that the statement is the type presumed harmful).

Threatening to say bad things, without actually doing so, does not by itself create a defamation claim.

D. “Publication” in Defamation

For defamation:

• Publication = telling the defamatory statement to at least one other person.
• Statements said only to the plaintiff, or thoughts kept in the defendant’s mind, are not “published.”

Thus, if a homeowner berates a contractor directly in a private email, calling him “dangerous” or “incompetent,” that might be insulting (and perhaps evidence in another type of claim), but it is not defamation unless those statements are also communicated to others.

E. “Futility” of Amendment

Courts usually allow plaintiffs to amend their complaints to fix defects. However, an amendment is considered futile if, even with the new allegations:

• The complaint would still fail to state a claim as a matter of law.

In such cases, a judge can deny leave to amend because it would not change the outcome. That is what happened here.

VII. Impact and Practical Implications

A. For Contractors and Homeowners

1. Handling unforeseen conditions Construction projects often reveal unforeseen structural or safety issues. Dever demonstrates that:
   • Contractors concerned about safety or code compliance must be careful in how they condition their continued performance.
   • If they unequivocally refuse to do the contracted work unless the owner agrees to additional terms, they risk being found to have repudiated the contract.
   • A more prudent approach is to:
     • Document the unforeseen condition,
     • Advise the owner in writing of potential consequences, and
     • Offer a formal change order while making clear they are still prepared to complete the original work if the owner insists, subject to any legal duties regarding safety or code.
2. Owners’ responses to change demands Owners who face demands for extra work and payment can take some comfort from the principle affirmed here: if the contractor refuses to perform under the existing contract unless the owner acquiesces, the owner may be entitled to treat that as a repudiation and hire someone else, without being held liable for breach—so long as the contractor’s refusal is clear and unconditional.

B. For Defamation Litigants

1. Need for specific factual allegations Self-represented litigants often plead defamation in broad terms (“she destroyed my reputation,” “he slandered me”). Dever underscores that such generalized assertions are insufficient. A viable complaint should:
   • Identify the specific statements alleged to be false and defamatory.
   • Allege when, where, and to whom they were made.
   • Explain why they are false.
   • Describe how they harmed the plaintiff.
2. Threats vs. acts The case draws a clear line between:
   • Threats to attack someone’s character (which, if not carried out, are not defamation), and
   • Actual publication of false statements (which can be defamation if other elements are met).
   Plaintiffs must allege the latter, not just the former.

C. For Self-Represented Parties and Appellate Practice

Dever highlights several procedural cautions:

• Everything important must be in the pleadings and record. New facts raised only on appeal will not be considered.
• Legal labels don’t substitute for facts. Calling conduct “breach of contract” or “defamation” does not overcome the absence of the necessary factual allegations.
• Amendment must address the defect. Simply rewriting the complaint or adding more narrative does not help if the fundamental legal shortcomings remain.

D. Precedential Status

The opinion explicitly notes that decisions of a three-justice panel are not to be considered as precedent before any tribunal. This means:

• It is not binding authority in future cases.
• However, it reflects how the Vermont Supreme Court is likely to apply existing, binding precedents (Margolis, Record, Skaskiw, etc.) to similar fact patterns.

In practice, lawyers and lower courts may view such entry orders as persuasive on how settled law operates, especially in common dispute types like small-scale construction and defamation claims.

VIII. Conclusion

Dever v. Lee is a concise but instructive application of core contract and tort principles in Vermont law.

On the contract side, the Court reaffirmed that:

• A party who refuses to perform a written agreement except on materially altered conditions beyond the contract’s terms repudiates the contract.
• Such repudiation discharges the other party’s performance duties and prevents the repudiating party from claiming that the other side breached by terminating the relationship.

On the defamation side, the Court reiterated that:

• Defamation requires, among other elements, publication of a false and defamatory statement to at least one third party.
• Allegations that others spoke to the defendant about the plaintiff, or that the defendant threatened “character assassination” without actually publishing defamatory statements, are insufficient.

Procedurally, the decision emphasizes the limits of appellate review (no consideration of facts outside the record) and the importance of pleading all essential elements, even for self-represented litigants. It also illustrates the concept of futility of amendment when new pleadings fail to cure fundamental defects.

While nonprecedential, Dever v. Lee offers a clear illustration of how Vermont courts apply the doctrines of anticipatory repudiation and defamation to everyday disputes, and it serves as a practical reminder that careful drafting and precise factual allegations are essential to surviving a Rule 12(b)(6) motion.