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[1] ¶ 15. On appeal, plaintiffs first argue that the superior court erred by entering a default judgment rather than
granting their motion for summary judgment. According to plaintiffs, summary judgment was mandatory under Rule
56(c)(3) because defendant did not oppose by affidavit, as required by the rule, any of their claims on the merits,
[2] ¶ 16. Plaintiffs sought summary judgment because they wanted a judgment on the merits and a jury trial on dam-
ages with respect to defendant's allegedly outrageous conduct. They received both. “A default judgment is a judg-
ment on the merits that conclusively establishes the defendant's liability.” United States v. Shipco Gen., Inc., 814
F.2d 1011, 1014 (5th Cir.1987). Further, as the trial court ruled, entry of default judgment did not preclude plaintiffs
from obtaining a jury trial on damages. Thus, the superior court did not abuse its discretion by entering a default
Yet, in asking the trial court for summary judgment rather than default judgment, plaintiffs never explicitly claimed
that it would make a difference as to the availability of punitive damages. We conclude that the slight differences in
wording between the requested summary judgment and the default judgment would not have caused a different re-
sult.
¶ 19. Seizing upon the phrase “appropriate level of damages,” plaintiffs argue that the court's order determined lia-
bility as to punitive damages by accepting as true their allegation of defendant's willful and wanton conduct. Ac-
cording to plaintiffs, the court intended for a jury to determine only the amount of punitive damages, and not wheth-
er punitive damages were appropriate in this case. We conclude that plaintiffs read too much into Judge Cohen's
of no malice was not supported by any evidence. Conceding that the jury could have declined to award punitive
damages even if it had found malice, plaintiffs did not file a motion for judgment notwithstanding the verdict, but
rather argued that they were entitled to a new trial on damages because *634 of the absence of any evidence support-
ing the jury's finding of no malice. In denying plaintiffs' Rule 59 motion, the trial court stated simply that its discre-
tion was limited because it had to give presumptive weight to the jury's verdict. We review that ruling. See 9B C.
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
essary to establish liability for punitive damages, one must show “conduct manifesting personal ill will or carried
out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard
of one's rights.” Brueckner, 169 Vt. at 129, 730 A.2d at 1095 (internal quotes omitted). In recent cases, we have em-
phasized that, in addition to a showing of illegal, wrongful, or reckless conduct, there must be some evidence of bad
motive on the defendant's part to establish malice and support an award of punitive damages. *636Id. at 130, 730
A.2d at 1096; see also Bolsta v. Johnson, 2004 VT 19, ¶¶ 5, 7, 9, 176 Vt. 602, 848 A.2d 306 (mem.) (holding that
reckless conduct of drunken driver, without additional evidence of personal ill will or bad motive, was insufficient to
establish malice per se and support award of punitive damages). This emphasis on bad motive has been a source of
confusion, as evidenced by the jury's response to the trial court's charge in this case.
FN2. We note that this Court has suggested, but never explicitly held, that the jury determines whether mal-
ice exists as a question of fact. See Gaylord v. Hoar, 122 Vt. 143, 148, 165 A.2d 358, 362 (1960) (noting
he decides there is, the assessment of damages is committed to the jury's discretion”); Dillard Dep't Stores,
Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882, 887 (1999) (stating that trial court has responsibility “to de-
termine whether, as a matter of law, the plaintiff has offered substantial evidence of malice in fact to sup-
port a punitive damages instruction” (quotation omitted)). Most courts, however, hold that the jury, as the
finder of fact, determines whether malice exists. See, e.g., Lindquist v. Friedman's, Inc., 366 Ill. 232, 8
manifesting personal ill will” but also “conduct showing a reckless disregard to the rights of others.” Bolsta, 2004
VT 19, ¶ 5, 176 Vt. 602, 848 A.2d 306. On the other hand, we also require some evidence of “bad motive,” which
could be interpreted as personal ill will or, at minimum, some indication of bad faith beyond a willful violation of
the law or a reckless disregard of the rights of others. Id. ¶¶ 5, 7. This is the discrepancy that confused the jury in
this case and caused the trial judge to attempt to explain to the jury the difference between the words “reckless” and
v. Raymond, 494 A.2d 1353, 1361 (Me.1985); see also Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174, 1175
(1987) (stating that malice can be found based upon either “behavior characterized by hatred, ill will, or a spirit of
revenge” or “extremely reckless behavior revealing a conscious disregard for a great and obvious harm”).
[9][10] ¶ 27. Thus, malice may arise from deliberate and outrageous conduct aimed at securing financial gain or
tal suffering in order to recover damages for that element. In the course of deciding that issue, the Court noted: “in
actions for intentional wrongs, such as trespass for assault and battery, damages are recoverable for mental suffering
rule is that the court can select its own language in crafting the charge, Weaver v. Brush, 166 Vt. 98, 107, 689 A.2d
439, 445 (1996), and “the degree of elaboration lies within [the] sound discretion” of the trial judge, Knapp v. State,
168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.). We review to determine whether the instructions convey the
“true spirit and doctrine of the law.” John A. Russell Corp. v. Bohlig, 170 Vt. 12, 19, 739 A.2d 1212, 1218 (1999).
[18] ¶ 38. Plaintiffs also ask us to review a ruling of the court, which also came in the charge conference, with re-
spect to damages under the CFA. The complaint charged that defendant had violated the CFA, and plaintiffs sought
punitive damages and attorney's fees under 9 V.S.A. § 2461(b) for this violation. The statutory section provides:
Any consumer who contracts for goods or services in reliance upon false or fraudulent representations or practices
..., or who sustains damages or injury as a result of any false or fraudulent representations or practices ... may sue
vices and that there was no contract establishing defendant's fee or the method of its calculation. Defendant argued
that the “value given by the consumer” was the amount that he would have charged plaintiffs, and that the jury could
determine that amount from his testimony. Plaintiffs apparently FN3 argued that the jury could consider at least part
of the money defendant misappropriated as “value given by the consumer.”
FN3. We have said “apparently” because plaintiffs' theory is not clear. Plaintiffs seemed to argue at one
their brief, plaintiffs argue that they had “orally requested a charge allowing the jury to decide the value of the con-
sideration ... and objected to the jury charge that this had been taken from the jury” because the “court ruled that the
consideration was only the amount Mr. Ruggiero said he would have charged for his time.” Although we cannot
determine this conclusively because there was no definitive ruling by the trial judge, we doubt that the trial judge
would have ruled as a matter of law what the value given by plaintiffs was for purposes of § 2461(b).FN4 It does ap-
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
essary to establish liability for punitive damages, one must show “conduct manifesting personal ill will or carried
out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard
of one's rights.” Brueckner, 169 Vt. at 129, 730 A.2d at 1095 (internal quotes omitted). In recent cases, we have em-
phasized that, in addition to a showing of illegal, wrongful, or reckless conduct, there must be some evidence of bad
motive on the defendant's part to establish malice and support an award of punitive damages. *636Id. at 130, 730
A.2d at 1096; see also Bolsta v. Johnson, 2004 VT 19, ¶¶ 5, 7, 9, 176 Vt. 602, 848 A.2d 306 (mem.) (holding that
reckless conduct of drunken driver, without additional evidence of personal ill will or bad motive, was insufficient to
establish malice per se and support award of punitive damages). This emphasis on bad motive has been a source of
confusion, as evidenced by the jury's response to the trial court's charge in this case.
FN2. We note that this Court has suggested, but never explicitly held, that the jury determines whether mal-
ice exists as a question of fact. See Gaylord v. Hoar, 122 Vt. 143, 148, 165 A.2d 358, 362 (1960) (noting
he decides there is, the assessment of damages is committed to the jury's discretion”); Dillard Dep't Stores,
Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882, 887 (1999) (stating that trial court has responsibility “to de-
termine whether, as a matter of law, the plaintiff has offered substantial evidence of malice in fact to sup-
port a punitive damages instruction” (quotation omitted)). Most courts, however, hold that the jury, as the
finder of fact, determines whether malice exists. See, e.g., Lindquist v. Friedman's, Inc., 366 Ill. 232, 8
manifesting personal ill will” but also “conduct showing a reckless disregard to the rights of others.” Bolsta, 2004
VT 19, ¶ 5, 176 Vt. 602, 848 A.2d 306. On the other hand, we also require some evidence of “bad motive,” which
could be interpreted as personal ill will or, at minimum, some indication of bad faith beyond a willful violation of
the law or a reckless disregard of the rights of others. Id. ¶¶ 5, 7. This is the discrepancy that confused the jury in
this case and caused the trial judge to attempt to explain to the jury the difference between the words “reckless” and
v. Raymond, 494 A.2d 1353, 1361 (Me.1985); see also Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174, 1175
(1987) (stating that malice can be found based upon either “behavior characterized by hatred, ill will, or a spirit of
revenge” or “extremely reckless behavior revealing a conscious disregard for a great and obvious harm”).
[9][10] ¶ 27. Thus, malice may arise from deliberate and outrageous conduct aimed at securing financial gain or
tal suffering in order to recover damages for that element. In the course of deciding that issue, the Court noted: “in
actions for intentional wrongs, such as trespass for assault and battery, damages are recoverable for mental suffering
rule is that the court can select its own language in crafting the charge, Weaver v. Brush, 166 Vt. 98, 107, 689 A.2d
439, 445 (1996), and “the degree of elaboration lies within [the] sound discretion” of the trial judge, Knapp v. State,
168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.). We review to determine whether the instructions convey the
“true spirit and doctrine of the law.” John A. Russell Corp. v. Bohlig, 170 Vt. 12, 19, 739 A.2d 1212, 1218 (1999).
[18] ¶ 38. Plaintiffs also ask us to review a ruling of the court, which also came in the charge conference, with re-
spect to damages under the CFA. The complaint charged that defendant had violated the CFA, and plaintiffs sought
punitive damages and attorney's fees under 9 V.S.A. § 2461(b) for this violation. The statutory section provides:
Any consumer who contracts for goods or services in reliance upon false or fraudulent representations or practices
..., or who sustains damages or injury as a result of any false or fraudulent representations or practices ... may sue
vices and that there was no contract establishing defendant's fee or the method of its calculation. Defendant argued
that the “value given by the consumer” was the amount that he would have charged plaintiffs, and that the jury could
determine that amount from his testimony. Plaintiffs apparently FN3 argued that the jury could consider at least part
of the money defendant misappropriated as “value given by the consumer.”
FN3. We have said “apparently” because plaintiffs' theory is not clear. Plaintiffs seemed to argue at one
their brief, plaintiffs argue that they had “orally requested a charge allowing the jury to decide the value of the con-
sideration ... and objected to the jury charge that this had been taken from the jury” because the “court ruled that the
consideration was only the amount Mr. Ruggiero said he would have charged for his time.” Although we cannot
determine this conclusively because there was no definitive ruling by the trial judge, we doubt that the trial judge
would have ruled as a matter of law what the value given by plaintiffs was for purposes of § 2461(b).FN4 It does ap-
