Tibbetts v. Michaelides, 2011 VT 52 (mem.)
In this dispute between neighboring landowners, defendants appeal from a superior court order rejecting their claim that plaintiffs violated a deed restriction limiting the number of houses to be constructed on the property. We affirm. The restricted lots were not benefited by the covenant.
The essential question presented, as the trial court recognized, is which estate the parties to the Lowell-to-Trono deed intended to benefit from the five-house restriction. It is axiomatic that “[t]he intent of the parties determines which estates or servitude interests are burdened or benefited by a servitude” and that such intent may be either express or “inferred from the circumstances.” Restatement (Third) Prop.: Servitudes § 2.5 cmt. a (2000); see Madkour v. Zoltak, 2007 VT 14, ¶14, 181 Vt. 347, 924 A.2d 11 (“To determine which property is burdened by the restrictive covenant. . . we must look to the language of the deed itself and consider [the grantor’s] intent in the context within which she conveyed the property.”).
Construing the deed as a whole and the circumstances of its making, the trial court here concluded that the restriction was intended solely to benefit the land retained by Lowell, so that defendants had no standing to enforce it. We agree. Although the deed does not expressly identify the restriction’s intended beneficiary, there was no dispute that, as the trial court found, Lowell retained substantial property “surrounding the five-acre parcel.” As the court further observed, a basic interpretive rule is that—absent evidence of an intent to the contrary—a restriction relating to the use of a portion of land sold by a grantor is generally presumed to be intended for the benefit of the land that the grantor has retained.
We find no basis to disturb the judgment that neighbors were not benefitted by the restriction, and therefore lacked standing to enforce it.
Monday, July 11, 2011
Workers’ compensation. Appeal on “question of law” whether the evidence supports the finding. “Five part” test discussed.
Houle v. Ethan Allen, Inc. , 2011 VT 62 (mem.)
According to Dr. Chen, the combination of claimant’s repetitive work for employer and her need to compensate for the pain and weakness in her left shoulder most likely resulted in a “cumulative dose injury” to her right shoulder. Dr. Wieneke, an orthopedic surgeon, and Dr. Johansson, an osteopath, disagreed with Dr. Chen’s analysis.
In view of the competing expert medical opinions, the Commission relied on a traditional five-part test to evaluate their persuasiveness. This test considers: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness, and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. The Commissioner found this to be a close case, but she was ultimately persuaded by claimant’s credible testimony and by Dr. Chen’s status as claimant’s treating orthopedic surgeon.
Employer first challenges the Commissioner’s use of the five-part test to evaluate competing medical opinions, both as applied in this case and in general. According to employer, the use of this test improperly shifts the burden of proof from claimant to employer, unfairly places employers at a disadvantage, and erroneously employs a “winner take all” approach to evaluating a claimant’s expert testimony. Claimant did not raise any of these arguments below, however, and thereby waived them. See Cehic, 2006 VT 12, ¶ 14 (similarly refusing to consider issue not raised before Commissioner). We reject employer’s unsupported assertion that it had no obligation to challenge the use of the test below. One primary purpose of our rules on preservation is to give the factfinder “the opportunity to consider the matter in the first instance.” Id.
No such opportunity was provided to the Commissioner here. To the contrary, employer urged the Commissioner to conclude that its experts were more persuasive under the five-part test. Given this, we decline to address employer’s challenge to the test for the first time on appeal.
We also reject employer’s assertion that the Commissioner erred by not explicitly making findings on all of the factors in the five-part test cited above. There appears to be no legal requirement that the Commissioner make findings on all five factors.
Because employer appealed directly to this Court, our jurisdiction is limited to a review of questions of law certified to this Court by the Commissioner. 21 V.S.A. § 672. The question certified here was “[d]id the Commissioner err in concluding that claimant’s right shoulder condition was compensable.” Our review of the facts is highly limited and “confined to the issue of law relating to the sufficiency of the evidence to support the factual findings.” Peabody v. Jones & Lamson Mach. Co., 122 Vt. 431, 433, 176 A.2d 759, 761 (1961). We evaluate any “factual” challenges advanced by employer under this deferential standard. Essentially, employer challenges the Commissioner’s assessment of the weight of the evidence. As we stated in Cehic, “it is not our role to weigh the evidence in the record.” 2006 VT 12, ¶ 12; see also Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533, 687 A.2d 465, 468 (1996) (“[T]he weight of the evidence is not reviewable by this Court on appeal.”). If employer believed that the weight of the evidence preponderated in its favor, it could have sought a new trial on the facts in the superior court. It declined to do so. Because the Commissioner was well within her discretion in finding Dr. Chen’s testimony credible while discounting Dr. Latham’s testimony, we affirm.
Appellate practice: timely objection/motion required in trial court to preserve error.
In re Estate of Tucker, 2011 VT 54
Appellant, testator’s daughter, seeks reversal of the trial court’s judgment declining to admit testator’s purported last will and testament to probate. This judgment followed a trial by jury, which rendered a special verdict finding that testator lacked testamentary capacity. Appellant raises various issues relating to the burden of proof, the jury instructions, and the denial of post-judgment motions. We conclude that all of appellant’s claims are moot or unpreserved, and accordingly, we affirm.
Daughter’s first claim of error relates solely to the court’s decision in allocating the burden of proof on undue influence. The jury rendered its verdict solely on testamentary capacity. Daughter must show that the asserted error produced prejudice and the jury relied upon the asserted error. See Lorrain v. Ryan, 160 Vt. 202, 209, 628 A.2d 543, 548 (1993) (“[Appellants] must show that an error in instructing the jury produced prejudice.
. . . Where there are multiple theories that could support the jury’s action, it is appellant’s responsibility to demonstrate . . . that the jury relied on the erroneous theory.”). Here, the asserted error played no part in the jury’s verdict, so there could be no prejudice. See Parizo v. Wilson, 101 Vt. 514, 518, 144 A. 856, 858 (1929) (“The rule is well settled that a judgment will not be reversed for an error that, by the verdict, is rendered immaterial.”).
Daughter next claims that the trial court erred in failing to inform the jury from the outset that the burden of proof for testamentary capacity was on daughter.We conclude that the late objection does not properly preserve the reservation of burden of proof issue for appeal. In addition to requiring that a party raise objections with “specificity and clarity,” In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (quotation omitted), we also require that an objection be raised in a “timely manner,” Burton v. Jeremiah Beach Parker Restoration & Constr. Mgmt. Corp., 2010 VT 55, ¶ 6, ___ Vt. ___, 6 A.3d 38, and “in a manner which gives the trial court a fair opportunity to rule on it.” White, 172 Vt. at 343, 779 A.2d at 1270 (quotation omitted). Daughter’s objection to the reservation of the burden of proof was not timely and failed to give the trial court an opportunity to properly consider the issue and to weigh her reasons for claiming that a determination of the burden of proof should not be reserved.
We also decline to reach argument about the instructions because daughter did not properly preserve it before the trial court. Vermont Rule of Civil Procedure 51(b) specifically addresses the requirement of objections to jury instructions in order to preserve claims of error. It states that “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” To preserve an objection to jury instructions, a party must additionally renew any objection made during the charge conference after the court instructs the jury. Venturella v. Addison-Rutland Supervisory Union, 2010 VT 115, ¶ 5, ___ Vt. ___, 12 A.3d 558 (mem.). In this case, daughter raised no objection at the trial court about the court’s failure to instruct the jury on insane delusions.
Lastly, we address daughter’s argument that the trial court erred in failing to rule in her favor on a number of post-trial motions. The motions that daughter raises on appeal include: (1) a motion for judgment as a matter of law; (2) a motion for relief from judgment; (3) a motion for a new trial. We hold the trial court properly denied daughter’s post-trial motion for judgment as a matter of law. Daughter did not make a motion for judgment as a matter of law before the submission of the case to the jury. See V.R.C.P. 50(a)(2) (“Motions for judgment as a matter of law may be made at any time before submission of the case to the jury.”). In the absence of such a motion, daughter’s challenge to the sufficiency of the evidence is waived, Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 27, 187 Vt. 309, 992 A.2d 1042, and the trial court properly denied the post-verdict motion on this ground. The other post-verdict motions all relate to daughter’s claim, discussed above, that the trial court failed to allocate the burden of proof on testamentary capacity prior to trial. As we have held above, this claim—made in different forms in daughter’s various arguments—was waived. Daughter could not save this claim by including it in post-verdict motions.
Appellant, testator’s daughter, seeks reversal of the trial court’s judgment declining to admit testator’s purported last will and testament to probate. This judgment followed a trial by jury, which rendered a special verdict finding that testator lacked testamentary capacity. Appellant raises various issues relating to the burden of proof, the jury instructions, and the denial of post-judgment motions. We conclude that all of appellant’s claims are moot or unpreserved, and accordingly, we affirm.
Daughter’s first claim of error relates solely to the court’s decision in allocating the burden of proof on undue influence. The jury rendered its verdict solely on testamentary capacity. Daughter must show that the asserted error produced prejudice and the jury relied upon the asserted error. See Lorrain v. Ryan, 160 Vt. 202, 209, 628 A.2d 543, 548 (1993) (“[Appellants] must show that an error in instructing the jury produced prejudice.
. . . Where there are multiple theories that could support the jury’s action, it is appellant’s responsibility to demonstrate . . . that the jury relied on the erroneous theory.”). Here, the asserted error played no part in the jury’s verdict, so there could be no prejudice. See Parizo v. Wilson, 101 Vt. 514, 518, 144 A. 856, 858 (1929) (“The rule is well settled that a judgment will not be reversed for an error that, by the verdict, is rendered immaterial.”).
Daughter next claims that the trial court erred in failing to inform the jury from the outset that the burden of proof for testamentary capacity was on daughter.We conclude that the late objection does not properly preserve the reservation of burden of proof issue for appeal. In addition to requiring that a party raise objections with “specificity and clarity,” In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (quotation omitted), we also require that an objection be raised in a “timely manner,” Burton v. Jeremiah Beach Parker Restoration & Constr. Mgmt. Corp., 2010 VT 55, ¶ 6, ___ Vt. ___, 6 A.3d 38, and “in a manner which gives the trial court a fair opportunity to rule on it.” White, 172 Vt. at 343, 779 A.2d at 1270 (quotation omitted). Daughter’s objection to the reservation of the burden of proof was not timely and failed to give the trial court an opportunity to properly consider the issue and to weigh her reasons for claiming that a determination of the burden of proof should not be reserved.
We also decline to reach argument about the instructions because daughter did not properly preserve it before the trial court. Vermont Rule of Civil Procedure 51(b) specifically addresses the requirement of objections to jury instructions in order to preserve claims of error. It states that “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” To preserve an objection to jury instructions, a party must additionally renew any objection made during the charge conference after the court instructs the jury. Venturella v. Addison-Rutland Supervisory Union, 2010 VT 115, ¶ 5, ___ Vt. ___, 12 A.3d 558 (mem.). In this case, daughter raised no objection at the trial court about the court’s failure to instruct the jury on insane delusions.
Lastly, we address daughter’s argument that the trial court erred in failing to rule in her favor on a number of post-trial motions. The motions that daughter raises on appeal include: (1) a motion for judgment as a matter of law; (2) a motion for relief from judgment; (3) a motion for a new trial. We hold the trial court properly denied daughter’s post-trial motion for judgment as a matter of law. Daughter did not make a motion for judgment as a matter of law before the submission of the case to the jury. See V.R.C.P. 50(a)(2) (“Motions for judgment as a matter of law may be made at any time before submission of the case to the jury.”). In the absence of such a motion, daughter’s challenge to the sufficiency of the evidence is waived, Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 27, 187 Vt. 309, 992 A.2d 1042, and the trial court properly denied the post-verdict motion on this ground. The other post-verdict motions all relate to daughter’s claim, discussed above, that the trial court failed to allocate the burden of proof on testamentary capacity prior to trial. As we have held above, this claim—made in different forms in daughter’s various arguments—was waived. Daughter could not save this claim by including it in post-verdict motions.
Friday, July 8, 2011
Act 250: Newly amended law does not apply on reconsideration of permit denial.
In re Times and Seasons, LLC, 2011 VT 76 (Johnson, J.)
Applicant Times and Seasons, LLC, appeals from the Environmental Court’s grant of summary judgment to the Natural Resources Board and corresponding denial of applicant’s Act 250 permit application to construct and operate a gift shop and deli with related improvements on Dairy Hill Road in the Town of Royalton. Applicant argues that it may avail itself of the definition of “primary agricultural soils” in 10 V.S.A. § 6001(15) amended during the course of its litigation to secure compliance with criterion 9(B), 10 V.S.A. § 6086(a)(9)(B), the only Act 250 criterion for which it has not received approval. We disagree and therefore affirm.
An application for reconsideration cannot rely on a favorable change in law. See 10 V.S.A. § 6087(c). On reconsideration, applicants must demonstrate through changes to the project itself that the deficiencies identified in the permit application’s denial have been corrected. To take advantage of the change in law, applicant must begin the Act 250 permit process anew.
An application for reconsideration cannot rely on a favorable change in law. See 10 V.S.A. § 6087(c). On reconsideration, applicants must demonstrate through changes to the project itself that the deficiencies identified in the permit application’s denial have been corrected. To take advantage of the change in law, applicant must begin the Act 250 permit process anew.
Summary judgment against movant: Conclusory affidavits insufficient.
In re Shenandoah LLC, 2011 VT 68 (Burgess, J.) (Skoglund, J., joined by Justice Dooley dissenting.)
It is well-established that ultimate or conclusory facts and conclusions of law cannot be utilized on a summary-judgment motion. 10 V.S.A. § 6001(14)(A)(iv) presumes parents are “persons,” for jurisdictional purposes “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”. Appellants' motion for summary judgment provided no information to the court and no actual documentation to support their conclusory statements that they had no “control” over the Trust’s activities and derived no “benefit” from the Trust’s land development activities. We therefore affirm the Environmental Court’s decision that there was no genuine issue of fact as to whether the parents benefited from their children’s trust’s subdivision.
The dissenters agree that the majority that the affidavits contained only “ultimate or conclusory facts and conclusions of law,” but would not affirm summary judgment against the movant, merely because it had not properly supported the motion. The Environmental Court, having found the evidence offered by appellants insufficient for a determination on the material fact in issue, should have simply denied summary judgment. To complicate the matter before the Environmental Court, there was no adversarial party to oppose summary judgment. Instead of requesting further evidence, the court summarily decided the case against the movant, essentially holding that the proffered facts were so lacking as to prove their own negative. Appellants should have been allowed to go forward with their proof.
It is well-established that ultimate or conclusory facts and conclusions of law cannot be utilized on a summary-judgment motion. 10 V.S.A. § 6001(14)(A)(iv) presumes parents are “persons,” for jurisdictional purposes “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”. Appellants' motion for summary judgment provided no information to the court and no actual documentation to support their conclusory statements that they had no “control” over the Trust’s activities and derived no “benefit” from the Trust’s land development activities. We therefore affirm the Environmental Court’s decision that there was no genuine issue of fact as to whether the parents benefited from their children’s trust’s subdivision.
The dissenters agree that the majority that the affidavits contained only “ultimate or conclusory facts and conclusions of law,” but would not affirm summary judgment against the movant, merely because it had not properly supported the motion. The Environmental Court, having found the evidence offered by appellants insufficient for a determination on the material fact in issue, should have simply denied summary judgment. To complicate the matter before the Environmental Court, there was no adversarial party to oppose summary judgment. Instead of requesting further evidence, the court summarily decided the case against the movant, essentially holding that the proffered facts were so lacking as to prove their own negative. Appellants should have been allowed to go forward with their proof.
Act 250 jurisdiction: parents are as a matter of law affiliated with minor children because of their obligation of support.
In re Shenandoah LLC, 2011 VT 68 (Burgess, J.) (Skoglund, J., joined by Justice Dooley dissenting.)
Shenandoah, LLC, David Shlansky, Ting Chang, and other entities and individuals, appeal from the Environmental Court’s summary judgment decision upholding an Act 250 jurisdictional opinion. The Environmental Court found that all prior subdivisions attributable to a Trust were also attributable to Shenandoah because they were “individuals and entities affiliated with each other for profit.” 10 V.S.A. § 6001(14)(A)(iii).The Environmental Court also found these units attributable to Shlansky and Chang as parents of the minor beneficiaries of the Trust, because profits of the trust would “diminish the parents’ burden to provide for their minor children.” We affirm the court’s jurisdictional opinion.
The parents are financially responsible for their minor children so that, absent any evidence or argument to the contrary, any financial benefit to the children inures to the benefit of the parents.
That benefit to the parents renders them “persons” as defined by Act 250. 10 V.S.A. § 6001(14)(A)(iii) (pertaining to subdivisions); Act 250 Rule 2(C)(1)(a) (pertaining to development). Under the first definition of “person,” it is explicitly up to the parents to prove otherwise. See 10 V.S.A. § 6001(14)(A)(iv) (presuming to include the parents as “persons,” “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”). Because any financial benefit to the minor children constitutes a financial advantage to the parents ordinarily responsible for their support the parents are affiliated “persons.”
Justice Skoglund, joined by Justice Dooley dissenting. would remand for further factual development, otherwise they argue, the result in this case is so far beyond the broad definition of the term “person” that any parent is swept into the Act 250 process if their child, dependent or not, benefits from a proposed land development. This is far beyond the broad definition of that term recognized under the Act.
Note that Chief Justice Reiber was present for oral argument, but did not participate in this decision. Judge Eaton was not present for oral argument, but reviewed the briefs, listened to oral argument, and participated in the decision, with Justice Johnson making a majority.
Shenandoah, LLC, David Shlansky, Ting Chang, and other entities and individuals, appeal from the Environmental Court’s summary judgment decision upholding an Act 250 jurisdictional opinion. The Environmental Court found that all prior subdivisions attributable to a Trust were also attributable to Shenandoah because they were “individuals and entities affiliated with each other for profit.” 10 V.S.A. § 6001(14)(A)(iii).The Environmental Court also found these units attributable to Shlansky and Chang as parents of the minor beneficiaries of the Trust, because profits of the trust would “diminish the parents’ burden to provide for their minor children.” We affirm the court’s jurisdictional opinion.
The parents are financially responsible for their minor children so that, absent any evidence or argument to the contrary, any financial benefit to the children inures to the benefit of the parents.
That benefit to the parents renders them “persons” as defined by Act 250. 10 V.S.A. § 6001(14)(A)(iii) (pertaining to subdivisions); Act 250 Rule 2(C)(1)(a) (pertaining to development). Under the first definition of “person,” it is explicitly up to the parents to prove otherwise. See 10 V.S.A. § 6001(14)(A)(iv) (presuming to include the parents as “persons,” “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”). Because any financial benefit to the minor children constitutes a financial advantage to the parents ordinarily responsible for their support the parents are affiliated “persons.”
Justice Skoglund, joined by Justice Dooley dissenting. would remand for further factual development, otherwise they argue, the result in this case is so far beyond the broad definition of the term “person” that any parent is swept into the Act 250 process if their child, dependent or not, benefits from a proposed land development. This is far beyond the broad definition of that term recognized under the Act.
Note that Chief Justice Reiber was present for oral argument, but did not participate in this decision. Judge Eaton was not present for oral argument, but reviewed the briefs, listened to oral argument, and participated in the decision, with Justice Johnson making a majority.
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