Thursday, March 16, 2017

Mortgages. SCOVT has no jurisdiction over appeal from dismissal of collateral attack on final judgment of foreclosure.

Billewicz v. Estate of Fanelli, No. 2017-028 (Vt. Mar. 1, 2017) (mem.) 

Pursuant to stipulation, the superior court issued a judgment order and decree of foreclosure. More than one year after issuance of a writ of possession, plaintiff filed a complaint alleging that the defendant had fraudulently mispresented the fair market value of the property. The court entered summary judgment in favor of defendant, noting the foreclosure judgment was final, that plaintiff had failed to follow the procedures for appealing the judgment pursuant to V.R.C.P. 80.1(m), and that nothing in the complaint showed that plaintiff could not have challenged the earlier stipulated value during the foreclosure proceedings. We dismiss plaintiff’s appeal.

A request for relief pursuant to V.R.C.P. 60(b) cannot be used to circumvent the strong legislative policy favoring finality of foreclosure judgments. Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458 (2002) (mem.) Although structured as a collateral action, plaintiff's complaint is essentially a request for relief from the foreclosure judgment pursuant to Rule 60(b). Therefore the appeal must be dismissed for lack of jurisdiction.

NOTE; The strong legislative policy favoring the finality of foreclosure judgments: See V.R.C.P. 80.1(m). (a party seeking to appeal a foreclosure judgment must seek permission to appeal within ten days "of the date of the entry of the judgment or order to be appealed from."); Mortg. Lenders Network, USA v. Sensenich, 2004 VT 107, ¶ 7, 177 Vt. 592, 873 A.2d 892 (mem.).( a foreclosure decree is a final judgment even if a right to redeem exists, and even if further proceedings ancillary to the foreclosure itself are contemplated.);Woodbine Condo. Ass'n v. Lowe, 174 Vt. 457, 458, 806 A.2d 1001, 1003 (2002) (mem.) (Rule 60(b) cannot be used to circumvent requirement of seeking permission to appeal foreclosure decree);.Citibank, N.A. v. Groshens, 171 Vt. 639, 640, 768 A.2d 1272, 1273 (2000) (mem.) (dismissing appeal from court's denial of motion to reopen foreclosure judgment because of legislative policy promoting finality of foreclosure judgments).

Tuesday, January 3, 2017

Juries. Discussion of the case prior to submission.

 State v. Tristan Cameron, 2016 VT 134 [filed December 23, 2016] 

The Court ruled as a matter of first impression that it is improper for jurors in a criminal case to discuss the evidence and in-court events with each other prior to submission.

The Court cautioned trial judges who are presiding over jury trials to give an explicit pre-submission nondiscussion instruction, along with an instruction not to communicate with others about the case. The instruction can be given in an orientation of potential jurors or in case-specific preliminary instructions. To the extent that the trial judge is giving reminder instructions during the trial, they should specifically address intra-jury communications.

Other jurisdictions are unanimous in prohibiting such discussion in criminal cases, although the Court noted that some courts have authorized juror evidence discussions prior to the submission of the case to the jury in civil cases. See D. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil. L. Rev. 92 (2002) (discussing authorization for pre-deliberation discussion in civil cases in Arizona, Colorado, and District of Columbia).

In the case before it it was inadequate for the trial judge to give daily instructions to the jurors not to discuss the case with others, without specifically addressing discussions among jurors.

Tuesday, November 22, 2016

Torts. Health care provider has duty to warn caregivers of dangerous mental patient.

Kuligoski v. Brattleboro Retreat. 2016 VT 54A [filed September 16, 2016]

DOOLEY, J. This case arises out of an assault by a former patient of the Brattleboro Retreat, a mental health treatment facility, while the patient. E. R., was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiffs sued the Retreat and NKHS, raising claims of failure to warn of E.R.’s danger to others, failure to train E.R.’s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants’ motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn claim, and affirm on the failure to treat, improper release, failure to train, and negligent undertaking claims.

Plaintiffs complaint alleged (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.’s parents how to supervise him, monitor and manage his medications, and take necessary and appropriate measures to protect potential victims; (4) the Retreat was negligent in its undertaking “to render a service that it recognized or should have recognized as necessary for the protection of third persons”; (5) NKHS was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (6) NKHS was negligent in failing to take “immediate and affirmative steps” to treat E.R.; and (7) NKHS was negligent in undertaking its duty to render services to E.R.

In Vermont, our most significant decision on the duty of mental health professionals to third parties is Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), Peck is a 3 to 2 decision with no majority opinion. Two Justices would have held that “a mental health professional who knows or, based upon the standards of the mental health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger.” Id. at 68, 499 A.2d at 427. We hold that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims.

However, we also hold that Peck extends to both  identifiable and foreseeable victims, and that plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation. While we agree that the Peck holding does not apply to a duty to warn the general public, the complaint here expresses a much narrower duty: to warn E.R.’s caretakers, here, his parents.

We conclude that the Retreat had a duty to give such warnings for two reasons. First the complaint alleges that the parents had assumed the role of E.R.’s caretakers were monitoring E.R.’s needs and treatment, were involved in his discharge, and were available to receive information on his continuing need for treatment and the actions that should have been taken based on his behavior. the Retreat owed a duty of care to provide reasonable information to the parents to enable them to recognize the dangers and fulfill the responsibilities envisioned for them in the treatment plan. Second E.R.’s parents fell within the “zone of danger” from E.R.’s conduct. The Retreat had a duty to warn E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities. The duty to “warn” may be better described as a duty to “inform” we decline to recognize a distinct cause of action for failure to “train” E.R.’s parents.

This duty applies only when a caregiver is actively engaging with the patient’s provider in connection with the patient’s care or the patient’s treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver’s ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient’s violent propensities.

We are imposing the duty to warn or inform as a matter of tort law only in circumstances where the mental health professionals and institution are authorized, but not obligated, to disclose under HIPAA, which is the situation as alleged here.

We hold that both the Retreat and NKHS had a duty to provide information to E.R.’s parents, both to warn them of E.R.’s risk of violence to themselves and others and to provide them reasonable information to enable them to fulfill their role in keeping him safe.

We stress that we are only defining the duty owed by the mental health services providers, and allowing this action to proceed to determine whether defendants breached their duties, and if so, were negligent in doing so. We affirm on plaintiffs’ failure-to-treat, failure-to-train, and negligent-undertaking claims. We reverse the dismissal of Counts II and V of plaintiffs’ complaint and remand for those counts to proceed.

Thursday, July 21, 2016

Punitive Damages. Evidence of both reprehensibility and malice was sufficient to support $4M punitive award where defendant knowingly placed dangerous product in the market.

Drake v. Allergan, Inc., No. 2: 13-cv-234 (D. Vt. May 22, 2015).

WILLIAM K. SESSIONS, III, District Judge. Allergan argues that is entitled to judgment as a matter of law on the issue of punitive damages because the evidence was insufficient to support the jury's verdict. The Court disagrees.

The Vermont Supreme Court's jurisprudence on punitive damages, by its own concession, "has not been a model of clarity." Fly Fish Vermont Inc. v. Chapin Hill Estates, 2010 VT 33, ¶ 18, 187 Vt. 541, 996 A.2d 1167. Plaintiffs seeking punitive damages must prove two elements: 1) "wrongful conduct that is outrageously reprehensible" and 2) malice, "defined variously as bad motive, ill will, personal spite or hatred, reckless disregard, and the like." Id. ¶ 18.

Thus, the Plaintiffs were required to prove that Allergan's conduct was outrageously reprehensible and that Allergan acted with malice. It is clear that in this case the Plaintiffs do not allege — nor could they prove — that Allergan had any ill will, personal spite, or hatred towards the Drakes individually. The question then is whether the Plaintiffs proved that Allergan's conduct was outrageously reprehensible and demonstrated a "bad motive" or "reckless disregard" sufficient to constitute malice in the state of Vermont.

Defining the contours of a standard for reckless disregard sufficient to warrant a finding of malice proved to be somewhat slippery for the Vermont Supreme Court. On the one hand, the court had held that in order to qualify for punitive damages the conduct at issue must be more than simply wrongful or unlawful. Fly Fish, 2010 VT 33, ¶ 19. And conduct evincing a "mere reckless disregard of the plaintiff's rights" or "a reckless disregard of the right of others" is likewise insufficient. Id. ¶¶ 19-20 (discussing Brueckner v. Norwich University, 730 A.2d 1086 (Vt. 1999) and Bolsta v. Johnson, 848 A.2d 306 (Vt. 2004) (internal quotation omitted)). The court noted that there must be some kind of bad motive on top of the tort because a threshold of reckless disregard, without more, would be so flexible it could become virtually unlimited in its application. Fly Fish, 2010 VT 33, ¶¶ 20-21.On the other hand, the Vermont Supreme Court had long-recognized the notion of malice arising from acting with a wanton disregard for great harm. Id. ¶ 23.

When defining the line between "reckless, wanton, or heedless misconduct" sufficient to warrant punitive damages and "mere reckless disregard" the Vermont Supreme Court held:
the culpability necessary for an award of punitive damages based on reckless or wanton misconduct requires evidence that the defendant acted, or failed to act, in conscious and deliberate disregard of a known, substantial and intolerable risk of harm to the plaintiff, with the knowledge that the acts or omissions were substantially certain to result in the threatened harm.
Id. ¶¶ 19, 21, 25. This is the measure by which reckless misconduct reaches the point of actual malice sufficient to support an award of punitive damages. Id. ¶ 25.

There are some circumstances, however, in which no reckless disregard analysis was necessary to find malice when there was either an element of bad motive by definition or otherwise demonstrable malice present. For example, the Vermont Supreme Court explained that an attorney who intentionally misappropriated money from a widowed plaintiff and lied about it in DeYoung v. Ruggiero, 2009 VT 9, ¶ 27, 185 Vt. 267, 971 A.2d 627, was egregious enough that malice could be inferred. Fly Fish, 2010 VT 33, ¶ 29.

In DeYoung the court noted that "malice may arise from deliberate and outrageous conduct aimed at securing financial gain or some other advantage at another's expense, even if the motivation underlying the conduct is to benefit oneself rather than harm another." DeYoung, 2009 VT 9, ¶ 27. The defendant's admitted motive in DeYoung was to enrich himself and promote the interests of his company, which the court found "in and of itself demonstrates a bad motive." Id. ¶ 29. It is not necessary to find an intention to do harm to find malice. Id. The court also included dicta suggesting that punitive damages should be available against companies that "knowingly [place] dangerous products into the market, hoping that people [will] not get hurt" while ignoring a great risk of harm to increase profits. Id. The court later explained that malice could be inferred in situations like the one DeYoung presented without an analysis of recklessness. Fly Fish, 2010 VT 33, ¶ 22.

The other cases in which the court described finding demonstrable malice involved, for example, fraud, Follo v. Florindo, 2009 VT 11, 185 Vt. 390, 970 A.2d 1230, a campaign of terror motivated by sectarian and racial bias, Shahi v. Madden, 2008 VT 25, 183 Vt. 320, 949 A.2d 1022, and filing a false mechanic's lien on property in an effort to extort right-of-way concessions from owners who had no prior business with the company and owed nothing, Wharton v. Tri-State Drilling & Boring, 2003 VT 19, 175 Vt. 494, 824 A.2d 531.

Wrongful and Outrageously Reprehensible Conduct. The evidence was sufficient to support the jury's conclusion that Allergan's promotional activities were outrageously reprehensible, especially in light of the Plaintiffs' evidence regarding the promotion of higher doses. The jury could have reasonably concluded that Allergan's conduct was outrageously reprehensible because Allergan did more than simply promote an off-label use. Allergan promoted the use of doses that it knew were risky in order to increase profits. A reasonable jury could have felt morally outraged by a corporation's desire to put its bottom line above children's health, safety, and even lives.

Malice. Evidence presented by the Plaintiffs reasonably suggested that Allergan was motived by financial gain and knowingly encouraged risky doses despite the real possibility that children could be injured. Even if malice cannot be inferred on this evidence, the Plaintiffs presented sufficient evidence from which a jury could find that Allergan's promotional campaign was undertaken "in conscious and deliberate disregard of a known, substantial and intolerable risk of harm to the plaintiff, with the knowledge that the acts or omissions were substantially certain to result in the threatened harm." Fly Fish, 2010 VT 33, ¶ 25. The jury could have found that Allergan was aware of the risks of high doses but promoted them anyway in order to reap greater profits.

Thus the Court finds that the Plaintiffs' evidence was sufficient to support the jury's award of punitive damages.

Wednesday, July 20, 2016

Long term leasehold interests are subject to both statutory and equitable partition in a case seeking to divide property of unmarried cohabitants.

Wynkoop v. Stratthaus. 2016 VT 5 (filed January 15, 2016)

DOOLEY, J. The parties to this appeal are co-lessees in a thirty-year ground lease for a ten-acre parcel of land The parties constructed improvements on the land and shared the parcel as unmarried cohabitants Upon termination of their relationship, plaintiff sought partition the property under 12 V.S.A. § 5161 and compensation for ouster under 12 V.S.A. § 4765. Defendant appeals the trial court's property division and compensation to plaintiff. We reverse in part and affirm in part.

On appeal, defendant claims the leasehold is not real property subject to partition under 12 V.S.A. § 5161; and that the court erred in calculating the parties' contributions to the project; We affirm the trial court's judgment with respect to the applicability of the partition statute to the leasehold. We reverse and remand for the court to correct errors in its calculation of the parties' respective contributions and to value the property and determine the partition remedy.

All, or virtually all, decisions that have considered the question before us have held that artition is available for leasehold interests. Based on our own analysis, as well as the precedents from other jurisdictions, we hold that plaintiff could seek partition under 12 V.S.A. § 5161.

There is, however, an alternative remedy applicable to the situation in which plaintiff is left. Partition is both an action at law, pursuant to the statute, and a remedy in equity that came to us as part of the English legal system a court could partition a leasehold interest under the court's equitable powers, In applying partition then, we have relied on equitable partition and not the action at law known as statutory partition. While there may be multiple reasons for proceeding this way in particular cases, the overall rationale applicable to property division for unmarried partners in marriage-like relationships is that we must consider all relevant circumstances to ensure that complete justice is done.

Thus, even if § 5161 did not apply because the parties have a leasehold interest and not ownership in fee, we would hold that partition in equity is the proper remedy.

Equitable partition can follow its own flexible procedures, and the court is not bound by those in the statute, including the use of commissioners. We conclude that appointment of commissioners is particularly inappropriate and unnecessary in a case like this because they add cost to the process, the value of the property is relatively small, and the role of the commissioners is very limited. Thus, we conclude that in this case the trial court should value the property and not refer valuation to commissioners. Once the court has valued the property, it should determine and order the partition remedy, either by assigning the property to plaintiff with a pay-off to defendant or sale of the property with distribution of the proceeds according to the percentage shares of the parties. If a sale is ordered, the court may appoint commissioners to sell the property.

In summary, we hold that he superior court has jurisdiction over this case based on the common leasehold interest of the parties. This case is appropriately an equitable partition case to be adjudicated under the equitable principles and procedures of a normal civil case.  The superior court should proceed to fashion a remedy without use of commissioners except, if necessary, for purposes of sale of the property.

EATON, J., concurring. I agree with the majority's conclusion that equitable partition, in addition to statutory partition, is part of the law of Vermont and that in reaching an equitable division of the parties' property, the court could employ equitable partition under the facts of this case. In my view, 12 V.S.A. § 5161 does not apply in this instance, making equitable partition available and appropriate.

Because the majority relies upon equitable partition, the historical overview of statutory partition is largely unnecessary to the result. I am also not convinced that statutory partition is available in this case, and to the extent the majority holds that statutory partition provided any authority for the court to partition the leasehold interest, I disagree

Partition, whether employed under the statutory framework, or as a part of the court's equitable powers, is cumbersome, potentially expensive, and time-consuming. Using it with every division of a leasehold interest that comes before the court in a divorce or civil proceeding among unmarried cohabitants, would be unwise and unworkable. In long-term lease situations, however, or those where valuation of the leasehold is particularly difficult, it should be one of the tools available to the trial court, in its discretion, in discharging its obligation to divide the parties' property in an equitable manner.

I concur with the outcome reached by the majority, and agree with its analysis of the issues, except as to the applicability of 12 V.S.A. § 5161

Tuesday, July 19, 2016

Police not required to warn suspect of consequences of refusing field sobriety test.


State v. Farrow, 2016 VT 30 (filed March 11, 2016).

ROBINSON, .J. This case calls upon us to consider the admissibility of evidence of defendant's decision not to complete a field sobriety exercise as requested by a police officer in the context of an answer to a question we left open in a prior decision: Under the Vermont Constitution, is a defendant's refusal or failure to perform voluntary field sobriety exercises admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to perform the exercises may be admissible in court? We conclude that the refusal evidence is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court. Because we reject defendant's argument to the contrary on this point, as well as her arguments that on the record in this case the evidence in question was irrelevant and unduly prejudicial, we affirm.


Defendant challenges the trial court's admission of the video recording and the trooper's testimony concerning defendant's conduct and ultimate cessation of the MRT on the basis of the Vermont Rules of Evidence According to defendant, in light of the absence of any evidence supporting the validity of the exercise in the first place, and the presence of many explanations for her decision to stop the exercise, the evidence in question proved nothing, and its admission was prejudicial because it suggested otherwise to the jury. We conclude that the trial court did not abuse its discretion in admitting the evidence to show that defendant discontinued her participation in the exercise because: (1) the evidence may have some probative value in showing consciousness of guilt, and (2) especially given its instructions to the jury, the trial court could reasonably conclude that the prejudicial effect of the evidence did not substantially outweigh its probative value.


Defendant's appeal raises a question that this Court has previously left unresolved: whether the Vermont Constitution requires—as a prerequisite to use of the individual's refusal as evidence in court—that an officer advise an individual that refusal to perform a field sobriety exercise may be admitted as evidence of consciousness of guilt. We reject defendant's Fourth Amendment argument. It is well established that police may, without a warrant but upon reasonable suspicion, ask a driver to perform field sobriety exercises. To the extent defendant is arguing that the Fourth Amendment, and its Vermont Constitution analog in Chapter 1, Article 11, nevertheless require some sort of warning to an individual asked to perform field sobriety exercises, she makes no argument linking those constitutional provisions to the claimed warning requirement.


Defendant argues that the protections against compelled self-incrimination in the Vermont Constitution extend to nontestimonial evidence because Article 10 provides that a person cannot be compelled to "give evidence against oneself," whereas the Fifth Amendment provides that a person cannot be compelled to be "a witness against himself." The logic of defendant's argument might support a conclusion that evidence of an individual's refusal to perform an exercise is inadmissible in court—an issue we do not revisit here. But defendant does not provide a logical connection between Article 10, as she understands it, and a requirement that an individual be warned. We emphasize that the strength of our holding on this point is limited by the vagueness of defendant's arguments on appeal.

Appellate procedure. Motion for interlocutory appeal was sufficient to permit jurisdiction over appeal from final judgment.

State v. Alcide, 2016 VT 4 ( filed - January 8, 2016)

DOOLEY, J Defendant has filed a motion to dismiss this appeal on the grounds the State untimely filed its notice of appeal. We reject defendant's argument and conclude we do have jurisdiction over this appeal.

Although the trial court's dismissal was entered on July 3, 2014, the State did not file its Vermont Rule of Appellate Procedure 4 notice of appeal with the trial court until September 8. The State argues that the prosecution had filed a motion for permission to appeal the earlier interlocutory suppression ruling under V.R.A.P. 5 on July 10, which was granted by the trial court on August 25 without opposition, and was sufficient to put the defense on notice of the appeal. We agree and will consider this appeal as timely filed.

A mistake in designating a judgment appealed from is "not always fatal, so long as the intent to appeal from a specific ruling can be fairly inferred by probing the notice and the other party was not misled or prejudiced." We "decline to interpret Rule 4" in an unduly narrow fashion, Casella Const., Inc. v. Dep't of Taxes, 2005 VT 18, ¶ 5, 178 Vt. 61, 869 A.2d 157, in recognition of the limited purposes served by a notice of appeal: to inform the "parties and tribunals concerned that the proceedings are not concluded so that they may respond accordingly" and to invoke "appellate jurisdiction by accomplishing the transfer of the case to the reviewing authority while the question sought to be reviewed remains open to appeal." ¶ 11.

Here, Because the Rule 5 motion clearly indicated the State intended to appeal from the trial court's order on suppression and dismissal, and because "imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to what appellate court," Becker v. Montgomery, 532 U.S. 757, 767 (2001), we hold that the State's motion for permission to appeal an interlocutory ruling was sufficient to afford defendant with notice, and consequently sufficient to permit us jurisdiction over this appeal.