Appeals. Attorney’s fee procedure.

UniFirst Corp. v. Junior’s Pizza, Inc., 2012 VT 13 (mem.)

Plaintiff UniFirstCorporation. has requested attorney’s fees and costs associated with this appeal. This issue is not properly before us. Under Vermont Rule of Appellate Procedure 39(f), a party seeking attorney’s fees for work done on an appeal to this Court must file a motion in the trial court within fourteen days after we issue the mandate in the appeal.

Arbitration in absentia confirmed. Untimely challenge.

UniFirst Corp. v. Junior’s Pizza, Inc., 2012 VT 13 (mem.)

This is an appeal by defendant Junior’s Pizza, Inc. from a superior court decision confirming an arbitration award in favor of plaintiff UniFirstCorporation. The trial court held that Junior’s waived its right to object to arbitration by failing to challenge the award within thirty days of receiving notice. Junior’s appeal argues that it did not waive its right to object to the arbitration award, and that UniFirst was required to petition to compel arbitration prior to engaging in arbitration without Junior’s participation. We affirm.

Under the Vermont Arbitration Act (VAA), 12 V.S.A. §§ 5651-5681, we must confirm an arbitration award unless grounds are established to vacate or modify it. Although Junior’s has not moved to vacate the arbitration award, it objected to the award in opposition to UniFirst’s motion to confirm. As an attempt to vacate the arbitration award, Junior’s objection is untimely. Under the VAA An application to vacate an award shall be made within 30 days after delivery of a copy of the award to the applicant,12 V.S.A. § 5677(c). Junior’s waived any objections it may have had by failing to seek a vacatur within 30 days. For this reason, the superior court correctly granted summary judgment for UniFirst.

In any event, Junior’s objection is groundless. UniFirst was not required to petition to compel Junior’s to arbitrate before proceeding with arbitration in Junior’s absence. The Commercial Arbitration Rules of the AAA. Rule 29 provides that the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement The VAA provides that “arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear.” 12 V.S.A. § 5666. Thus, an arbitration hearing may proceed without the participation of an unwilling party. There is no rule requiring a party to compel an unwilling adversary to participate in arbitration.

SCOVT 2011: Selected Short Topical Summaries © 2012 Allan R. Keyes, Esq., all rights reserved

Adverse possession.

 Must be continuous.   In re Estates of Allen, 2011 VT 95 (Dooley, J.)

 Appeals. 

One-day late appeal dismissed. Fax is not effective method for filing notice of appeal. Crocker v. Crocker, 2011 VT 82 (mem.)

Claimant "prevailed" on appeal and was entitled to costs and attorney’s fees under fee-shifting statute, notwithstanding  that claimant was yet to prevail on the merits of her claim for compensation. McNally v. Department Of Path, 2011 VT 93, 1 A.3d 333 (mem.) (Burgess, J. joined by Reiber, C. J., dissenting).

Timely objection/motion required in trial court to preserve error. In re Estate of Tucker, 2011 VT 54 (mem.)

Arbitration. 

Assignee of arbitration agreement has no right to arbitrate its own, pre-assignment conduct.   Porter v. AT&T Mobility, LLC , 2011 VT 112 (mem.)

Attorney Discipline.

In re Strouse, Esq. 2011 VT 77 (mem.) (Dooley, J., dissenting, joined by Chief Justice Reiber.)

In re Rosemary A. Macero, Esq., 2011 Vt. 67 (mem.)

Unreasonable fees. In re Melvin Fink, 2011 VT 42 (Johnson, J.)  

 Attorney’s fees.

Indemnity agreement did not require award of fees incurred to enforce the indemnity clause.  Case analogous to denial of fees for suits that establish insurance coverage.  Southwick v. City of Rutland v. Vermont Swim Association, 2011 VT 105 (Skoglund, J.)

Attorneys.

 Lawyer not liable to nonclient for nondisclosure of a matter of opinion during a negotiation, where underlying facts equally available.  Lay v. Pettengill, 2011 VT 127 (Dooley, J.)

City attorney did not owe a professional or other fiduciary duty to City employee.  Handverger v. City of Winooski, 2011 VT 134 (Burgess, J. )

Broker commission.

 Lang McLaughry Real Estate LLC v. Hinsdale, 2011 VT 29 (Dooley, J. ) 

Collections.

Foreclosure dismissed for lack of standing. U.S. Bank National Association v. Kimball, 2011 VT 81 (Burgess, J.)

Property held in tenancy by entirety not subject to attachment. RBS Citizens, N.A. f/k/a Citizens Bank of Rhode Island v. Ouhrabka, 2011 VT 86 (Reiber, C.J.) 

Wage garnishment violated federal cap. Cote v. Cote, 2011 VT 92 (Burgess, J.)

Criminal Law. DUI.

 Admission of refusal to take preliminary breath test harmless; Court divided whether error. State v. Kinney, 2011 VT 74 (Dooley, J.) (Johnson, J., concurring and Reiber, C.J., joined by Justice Burgess, J. concurring.) 

Boom lift is a motor vehicle. State v. Smith, 2011 VT 83 (Dooley, J.) 

Due process.

Unemployment Board uses faulty ex parte procedure. Piper v. Dept. of Labor, 2011 VT 32( Dooley, J.)

Evidence. 

 Ex parte Internet search by Judge prohibited. Rutanhira v. Rutanhira, 2011 VT 113 (Skoglund, J.) 

Exculpatory agreements.

Agreement  enforced to require indemnification for playground’s own negligence. Southwick v. City of Rutland, 2011 VT 53 (Johnson, J.) (Reiber, C.J., dissenting.)  

Limitation of liability; liquidated damages; arbitration. Divided court rejects as unconscionable a limitation of liability clause and an arbitration clause in home inspection contract.  Glassford v. BrickKicker,  2011 VT 118 (Skoglund, J ) (Dooley, J., concurring and dissenting.) (Burgess, J., joined by Chief Justice Reiber, concurring and dissenting).

Family law.

 Grandparent custody trumped by parent. In re K.M.M., 2011 VT 30 ( Johnson, J.)

Spousal maintenance obligation terminates upon incarceration? Herring v. Herring, 2011 VT 38 (Dooley, J.)

Custody. Chickanosky v. Chickanosky, 2011 VT 110 (Johnson, J.) 

Termination of parental rights.  Burden of proof. In re R.W.,  2011 VT 124 (Burgess, J.)

Insurance. 

Denial of UIM claim affirmed because policy delivered out of state.  Phrase “with respect to” is a conjunction.  McGoff v. Acadia Insurance Co., 2011 VT 102 (mem.)

Environmental Cleanup: time-on-risk allocation upheld.  Bradford Oil Co., v. Stonington Insurance Co., 2011 VT 108 (Dooley, J.)

 Medical malpractice by insured was not covered as concurrent cause, independent of excluded sexual misconduct.  ProSelect Insurance Co. v. Levy, 2011 VT 109 (mem.)

Title insurance does not apply absent legal challenge.  Trinder v. Connecticut Attorneys Title Insurance Co., 2011 VT 46 (Skoglund, J.)  

Jurisdiction.

 Court has “status” jurisdiction to terminate rights of parent who lacks minimum contacts with Vermont. In re R.W., 2011 VT 124 (Burgess, J.)

Probate appeal.  Statement of questions does not limit superior court. In re Estates of Allen, 2011 VT 95 (Dooley, J.)

Jury selection.

 Denial of peremptory challenge of black juror, without showing of bad motive, was reversible error per se.  State v. Bol, 2011 VT 99 (Burgess, J.)  

Medical malpractice.

 Psychiatrist who gave a single 90-minute consultation had a doctor-patient relationship and a duty of care, therefore summary judgment on issue of duty was error.  White v. Harris, 2011 VT 115 (mem.)

Property tax.

Exemption to private nonprofit secondary “public” school. Mountain View Community School, Inc. v. City of Rutland,  2011 VT 65 (Burgess, J.)   

Denial of tax abatement affirmed on equitable grounds unrelated to value.  Rule 75 ordinarily limited to questions of law.  Garbitelli v. Town of Brookfield, 2011 VT 122 (Reiber, C.J.)

Real Property.

 Restrictive covenants: Residential covenants not required in bulk “sale” by developer of land to affiliate. The question is not what a phrase means in technical legal terms, but what it meant to the parties.  This is a question of fact. Smalley v. Stowe Mountain Club, LLC, 2011 VT 51 (Burgess, J.)

Restrictive covenants benefit grantor, not grantees. Tibbetts v. Michaelides, 2011 VT 52 (mem.)

Law of Cadavers.  Ancient deed “excepted” a cemetery plot in fee simple, and did not merely “reserve” an easement.  In re Guite, 2011 VT 58 (Dooley, J.)

Reconsideration. 

 Reverses denial of Rule 59 motion to amend judgment on question of law “intrinsic” to, but not raised before, judgment.  In re SP Land Co., LLC, 2011 Vt. 104 (Johnson, J.) (Reiber, C.J., dissenting.)

 Summary judgment is always provisional until final judgment is entered. In re Estates of Allen, 2011 VT 95 (Dooley, J.)

Stare decisis. 

Follows questionable precedent that finding of sexual abuse by a preponderance of the evidence is insufficient to support family division order prohibiting parental contact. DeSantis v. Pegues, 2011 VT 114 (Skoglund, J.) (Johnson, J., joined by Justice Dooley concurring) (Crawford, Supr. J., Specially Assigned, dissenting.)

Precedent followed because it has not “undermined the public welfare, wrought individual injustice, or impeded the administration of justice.”    State v. Carrolton, 2011 VT 131 (Johnson, J.)

Two-year old decision overruled because it mistakenly departed from a general rule adopted in a 1940 case not cited. Whippie v. O'Connor, 2011 VT 97 (mem.)

Statute of Limitations.

Breach of trust runs six years from discovery. In re Estate of Alden, 2011 VT 64 (Skoglund, J.)  

Summary judgment.

Conclusory affidavits are insufficient. In re Shenandoah LLC, 2011 Vt. 68 (Burgess, J.) (Skoglund, J., joined by Justice Dooley dissenting.)

Torts. 

Slander of title not proved where plaintiff had no transferable ownership interest. Sullivan v. Stear, 2011 VT 37 (Reiber, C.J. ) 

Troopers undertook a duty of care when doing a “welfare check,” and may have been grossly negligent.  Kennery v. State of Vermont, 2011 VT 121 (Dooley, J.) (Toor, Supr. J., Specially Assigned, joined by Bent, Supr. J., Specially Assigned, concurring in part and dissenting in part.)

Toxic  torts.  Epidemiological evidence insufficient to show specific causation.  Spoliation argument rejected. Blanchard v. Goodyear Tire & Rubber Co.,  2011 VT 85 (mem.)

Trusts and Estates.  

The amended POA statute, enacted in 2002, invalidates gift transactions made after its effective date, even though they would otherwise have been valid under the statute at the time the POA was signed. In re Estate of Lovell, 2011 VT 61(Reiber, C.J. )

Family law. Revocable trust is not marital property but can be considered in dividing marital property. Billings v. Billings, 2011 VT 116 (Dooley, J.) (Reiber, C.J., concurring and dissenting.)

Workers’ compensation.

Appeal on “question of law” whether the evidence supports the findings. “Five part” test discussed. Houle v. Ethan Allen, Inc., 2011 VT 62 (mem.)

Zoning and Land use. 

Enforcement petition dismissed. Nordlund v. Van Nostrand, 2011 VT 79 (Reiber, C.J.)

Plain meaning. Use of  the dictionary.  Use of the virgule (“/”).  A self storage facility is not permitted as “retail sales/rentals” because it is not “retail.” In re Tyler Self-Storage Unit Permits, 2011 VT 66 (Burgess, J.)

Administrative amendments do not apply where full review required.  In re SP Land Co., LLC, 2011 VT 104 (Johnson, J.) (Reiber, C.J., dissenting.)

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.)

Act 250: Newly amended law does not apply on reconsideration of permit denial. In re Times and Seasons, LLC, 2011 VT 76 (Johnson, J.)

Blocking caller ID did not make threatening call “anonymous.”

State v. Wyrocki, 2012 VT 7 (Burgess, J.)

Defendant appeals her conviction for disturbing the peace by telephone in violation of 13 V.S.A. § 1027(a)(iii). The State charged defendant with making repeated and anonymous terrifying, intimidating, threatening, harassing, or annoying telephone calls. Defendant argues that the trial court incorrectly found that the calls were “anonymous” as required by § 1027. The court concluded that defendant’s calls were anonymous as required by § 1027 because she did not identify herself and “called from a phone that prevented Ms. Emilo from seeing her phone number.” Defendant contends that no call is anonymous if the person receiving the call identifies the caller and the calls were not anonymous because the recipient immediately recognized her as the caller. We agree that defendant’s calls were not anonymous within the meaning of the statute and therefore reverse.

The meaning of “anonymous” under § 1027 is one of first impression. The State argues that a call is “anonymous” under §1027 when “a defendant [takes] steps to conceal his or her identity.” Enacted in 1967, § 1027 became law well before caller ID became commonplace. The absence, or even masking of caller ID, therefore, is of no moment to our reading of § 1027. The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today.

The real issue whether the trial court’s focus on anonymity from the caller’s viewpoint, and not the listener’s, comports with the meaning of the Legislature. We conclude a call cannot be anonymous when its author is known to the listener. It is reasonable that the Legislature would criminalize terroristic, intimidating, threatening, harassing, or annoying telephone calls from unknown, rather than known actors, since such messages can reasonably be viewed as more vexing, disturbing, or sinister when communicated anonymously. Because defendant’s identity was not unknown, her telephonic communication was not anonymous, and § 1027 does not criminalize the conduct alleged in this case.

Probate procedure. A known codicil is part of the will and must be allowed, if at all, at same time as the will.

In re Estate of Perry, 2012 VT 9 (mem.)

This case presents a purported agreement to bifurcate the allowance of a will from the future allowance of a codicil. The superior court found that the purported agreement controls, notwithstanding the final probate court order allowing the will that did not reflect the agreement. We reverse.

Probate law generally treats a will and all valid codicils thereto as a single testamentary instrument.  An order allowing a will normally includes any known codicils, and any later effort to allow a codicil is an impermissible collateral attack on a final order.  After allowance of the will, sons petitioned the probate court to allow a codicil.   The probate court denied daughters motion to dismiss, based on a finding there was an understanding that allowance of the codicil would be held in abeyance.  On appeal from the denial, the superior court remanded the case to address the merits of whether the codicil should be allowed   Daughter now appeals from this decision, arguing there was never an agreement to bifurcate the proceedings, and that probate court’s order admitting the will was final, notwithstanding any such agreement.

A codicil is regarded as a part of the will; and the will and codicil are to be construed as one instrument.  Because the will and codicils are a single instrument, the order allowing the will and codicils is a final order, and any later petitions to allow a codicil are impermissible collateral attacks. Assuming arguendo there was an agreement to bifurcate the proceedings, the probate court’s order allowing the will did not reflect such an agreement and was final.

Time limit for relief from default not waived by agreement that preserved rights.

Pierce v. Vaughan, 2012 VT 5 (mem.)

This case raises the question of whether a court may grant a motion for relief from a default judgment  for mistake or inadvertence beyond the one-year limitations period of Vermont Rule of Civil Procedure 60(b), where the parties reached an agreement after the default judgment had entered.  Because the  agreement was -- as plaintiffs’ attorney admitted -- specifically designed to allow defendants to make a motion to set aside the default judgment, the trial  court considered the present case to involve  equitable considerations not covered by the one year limit for clause (1), (2), or (3).  However, the default judgment was entered due to mistake or inadvertence, and the subsequent agreement did not relieve the moving party of the burden to seek timely relief from the judgment.  Therefore, we conclude that the trial court’s grant of relief was in error.

Here, defendants rely on Rule 60(b)(6), which is an omnibus clause providing that “the court may relieve a party . . . from a final judgment, order, or proceeding for . . . any other reason justifying relief from the operation of the judgment.”  Rule 60(b)(6) is not to be used as a substitute for one of the first five subsections of V.R.C.P. 60(b).  Motions seeking relief under clauses (1), (2), and (3) require that the motion be filed “not more than one year after the judgment, order, or proceeding was entered or taken.”  V.R.C.P. 60(b).  If clause (6) were permitted to encompass grounds for relief that fall under clause (1), (2), or (3), then it would supply a backdoor to circumvent the one-year time limit.

In this case, defendants’ basis for relief from the judgment  was that they had attempted to respond to the claims brought against them, but  the default was entered  due to the failure to file this response with the court.  This most naturally falls within clause (1), which covers “mistake, inadvertence, surprise, or excusable neglect.”V.R.C.P. 60(b). Plaintiff’s later agreement that defendants were not precluded “from being able to raise whatever defenses they may have to plaintiffs[’] claims in any other actions between the parties” was not an agreement to relieve defendants of the default judgment against them; nor was it an agreement to excuse the limitations period for seeking relief from that judgment. Consequently, we find no support for the trial court’s decision to grant defendant’s motion under Rule 60(b)(6).

Any UIM coverage in a corporate liability policy does not extend to, and is not required for, an executive riding a personally owned vehicle, not in the course of business.

Mayhew v. Alterra Excess and Surplus Insurance Co., Case No. 2:11-cv-190 (D. Vt., January 25, 2012)

In this dispute over insurance coverage, the parties  have cross-moved for summary judgment. At issue is whether Alterra must provide Uninsured/Underinsured Motorist ("UM/UIM") coverage to Mayhew as president of Mayhew Enterprises, Inc., under a policy issued to the corporation,  for injuries Mayhew sustained in an auto accident. For the reasons stated below, the Court holds that Mayhew is not a covered individual under the issued insurance policy. Additionally, because the Vermont Uninsured/Underinsured Motorist Statute, Vt. Stat. Ann. tit. 23, § 941, only applies to those insured under the policy in question, Alterra is not required to provide UM/UIM coverage to Mayhew.

The definition of an insured provided in the policy is unambiguous. The Mayhew Enterprises, Inc. policy specified that the policy excluded "any partner or executive officer with respect to any auto owned by such partner or officer or a member of her household." This exclusion, which eliminates coverage not only for family members of executives using private vehicles, but also the executive officers themselves, unambiguously excludes executive officers who are using their own vehicles not on company business. Based upon the plain meaning of the definition of an insured in the Endorsement, Mayhew is excluded from coverage under part as he was an executive officer riding his motorcycle, a personally owned vehicle, not in the course of business.

While UM/UIM is statutorily mandated and insurance provisions cannot reduce or eliminate UM/UIM coverage, "those protections extend only to those insured under the policy. " Norman v. King, 659 A.2d 1123, 1125 (1995). Thus, if a "plaintiff cannot show that she meets any of the definitions of `an insured' under the UIM section of the policy . . . by its terms the policy excludes plaintiff from UIM coverage." Canedy v. Liberty Mutual Ins. Co., 126 F.3d 100, 104 (2d Cir. 1997) (construing Vt. law).

Because Mayhew is not an insured under the Endorsement, Vt. Stat. Ann. tit. 23, § 941 does not compel Alterra to provide UM/UIM coverage to him under the CGL.