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.

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.

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 partition 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

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.

Court affirms suppression of evidence of drugs seized after dog sniff search following traffic stop that was "prolonged beyond the time reasonably required to complete the mission" of issuing a ticket for the traffic violation.

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

DOOLEY, J. Defendant I was charged with possession of heroin and cocaine and sought to suppress all evidence of drugs seized from his vehicle after a police dog indicated the presence of drugs. The trial court found that the contraband was obtained through the illegal expansion of the scope of a motor vehicle violation stop into a criminal drug investigation, suppressed the evidence, and dismissed the charges. The State of Vermont appeals the trial court's grant of defendant's motion to suppress and dismiss. On appeal, the State contends that a minimal delay following the completion of a traffic stop for a dog sniff is reasonable under federal and state law. However, in light of the U.S. Supreme Court's decision in Rodriguez v. U.S., ___ U.S. ___, ___, 135 S.Ct. 1609, 1612 (2015), we affirm the trial court's decision to dismiss the case against defendant.

A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. Rodriguez  established that the Fourth Amendment does not permit a dog sniff conducted after the completion of a traffic stop that is "prolonged beyond the time reasonably required to complete the mission" of issuing a ticket for the violation.

After the corporal informed defendant he would be mailing a ticket for operating a motor vehicle while under suspension defendant denied permission for a search of the vehicle. The corporal returned to his cruiser and released the drug dog and walked him around defendant's vehicle. The dog alerted to the presence of drugs upon reaching the driver's side door. The corporal informed defendant of the alert; he again asked for permission to search, and defendant denied permission. Approximately seven to eight minutes had passed from the time the corporal stopped defendant until he deployed the drug dog.

We agree with the trial court that the stop "extended beyond the time reasonably necessary . . . to address the traffic offense," as the corporal deployed the drug dog after informing defendant he would mail a ticket for the traffic violation, the point at which he presumably accomplished the purpose of the stop.

Dismissal as discovery sanction affirmed.

Synecology Partners, L3C v. Business RunTime, Inc., 2016 VT 29 ( March 4, 2016)

EATON, J.. In this dispute between two computer software companies, SynEcology Partners, L3C challenges the trial court's order dismissing its complaint against Business RunTime, Inc. stemming from its failure to comply with Business RunTime's discovery requests. For the reasons stated herein, we affirm.

We have held that "where the ultimate sanction of dismissal is invoked it is necessary that the trial court indicate by findings of fact that there has been bad faith or deliberate and willful disregard for the court's orders, and further, that the party seeking the sanction has been prejudiced thereby." Med. Ctr. Hosp. of Vt., Inc., 136 Vt. at 519, 394 A.2d at 1135. "The imposition of the dismissal sanction cannot be imposed merely as punishment for failure to comply with the court's order." Id. Rather, the party's failure must evidence "flagrant bad faith" and "callous disregard of responsibilities counsel owe to the court and to their opponents." Id. at 520, 394 A.2d at 1135

SynEcology's contention that the circumstances called for a less drastic sanction than dismissal is incorrect because the trial court's order includes findings that describe a pattern of conduct that satisfies the standard articulated in Med. Ctr. Hosp. of Vt., Inc., and therefore warrants dismissal. The trial court reviewed the thirty-four month long discovery process, which included multiple requests for supplemental production by Business RunTime and two motions to compel. In drawing the conclusion that SynEcology acted in bad faith, the trial court specifically noted SynEcology's repeated insistence that it had produced all emails from the Comcast account, which it later retracted, without explanation, when that insistence was shown to be false. With regard to its finding that SynEcology acted with deliberate and willful disregard for the court's orders, the trial court noted SynEcology's failure to produce a privilege log, despite promising to do so on at least three occasions and being compelled to do so by a court order. Further, the trial court found Business RunTime was prejudiced by this behavior because: (1) the case was delayed for more than two years; (2) it was required to engage in unneeded motion practice to obtain materials it was properly entitled to; and (3) it suffered increased attorneys' fees. Considering this, combined with SynEcology's repeated failures to comply with the production requests, including its failure to produce a privilege log, its numerous unmet promises to do so, and the production of additional emails without explanation, the trial court properly concluded that SynEcology "purposefully and knowingly, and in bad faith, failed to provide accurate responses to the document requests

We disagree with SynEcology's claim that the dismissal of the action without a hearing on the motion for contempt was error.As reflected by the record, neither party requested a hearing with respect to the motion for contempt pursuant to Rule 78(b)(2).the trial court informed Synecology that before ruling upon the contempt motion, it would allow time for substitute counsel and supplemental pleading. This is exactly what the trial court did. Synecology's new counsel filed the supplemental pleading, but did not request a hearing on the motion. Rule 78(b)(2) authorizes a court to dispose of a motion without argument, and the decision to do so is within the discretion of the court. Bandler v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115, ¶ 11, ___ Vt. ___, ___ A.3d ___

Placing product in stream of commerce is a basis for personal jurisdiction.

State v. Atlantic Richfield Co.,2016 VT 22 (filed February 12, 2016)

REIBER, C.J.This interlocutory appeal requires us to examine the contours of the "stream-of-commerce" doctrine of personal jurisdiction, which was introduced by the U.S. Supreme Court in a 1980 decision but later divided the Court with respect to its scope. Defendant Total Petrochemicals & Refining USA, Inc. (TPRI) challenges a decision of the superior court, civil division, denying its motion to dismiss for lack of personal jurisdiction, a complaint alleging that TPRI, along with twenty-eight other defendants, contaminated the waters of the state by introducing into those waters a gas additive called methyl tertiary butyl ether (MTBE). We affirm.

The superior court "has discretion to decide a pretrial motion to dismiss for lack of personal jurisdiction on the basis of affidavits alone, to permit discovery, and to conduct an evidentiary hearing." Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). If, as in this case, "a court chooses to rule on a motion to dismiss for lack of personal jurisdiction on the basis of affidavits alone, the party opposing [the] motion need make only a prima facie showing of jurisdiction, or, in other words, demonstrate facts which would support a finding of jurisdiction." Id. The nonmoving party's prima facie showing must go beyond the pleadings and rely upon specific facts set forth in the record. Schwartz v. Frankenhoff, 169 Vt. 287, 295, 733 A.2d 74, 81 (1999). "In assessing the submitted materials, the [trial] court eschews fact finding and simply accepts properly supported proffers of evidence as true and rules on the jurisdictional question as a matter of law." Id.

The crux of TPRI's argument on appeal is that recent controlling U.S. Supreme Court case law-specifically J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 1058, 131 S. Ct. 2780 (2011) and Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115 (2014)-preclude Vermont courts from exercising personal jurisdiction over it in this case. According to TPRI, those cases stand for the propositions, respectively, that a defendant cannot be subjected to personal jurisdiction based on either the mere foreseeability that its product will end up in the subject forum or the unilateral conduct of third parties. We conclude that the governing law permits the exercise of personal jurisdiction in Vermont under the circumstances of this case.

Although "`foreseeability'" alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause," it is not "wholly irrelevant." World-Wide Volkswagen, 444 U.S. at 295, 297. "[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State," but rather "that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 297. Therefore, "[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." World-Wide Volkswagen, 444 U.S. at 297-98

World-Wide Volkswagen's stream-of-commerce analysis is the governing law on the stream-of-commerce doctrine, given the failure of the competing factions on the U.S. Supreme Court since that decision to garner a majority of votes to limit or expand the doctrine. Accordingly, we reject TPRI's argument that both the plurality and concurring opinions in McIntyre preclude the exercise of personal jurisdiction over a defendant based solely on the defendant's introduction of its product into a national distribution system aimed at bringing the product into the forum state among others. Given the facts of this case as they have been developed thus far, we conclude that the superior court did not err in denying TPRI's motion to dismiss for lack of personal jurisdiction.

Workers compensation payments must be offset by other payments made by the employer, to avoid double recovery.

Conant v. Entergy Corporation, 2016 VT 74 (filed July 8, 2016)

EATON, J. Employer challenges the denial of its request for a credit against future workers' compensation benefits owed to claimant. Employer asserts that, given the payments it made to claimant under the terms of a collective bargaining agreement (CBA), as well as the retroactive temporary total disability (TTD) payments it was ordered to make, claimant has received more money as wage replacement than she was owed. We agree. We therefore reverse the Commissioner of the Department of Labor's decision on this point, and remand for a determination of the amount to be offset from claimant's future workers' compensation benefits

The CBA makes plain the parties' intent that payments for occupational injuries are offset by workers' compensation payments. Because AIG denied claimant's request for workers' compensation benefits, employer began paying claimant salary continuance and short-term disability benefits pursuant to the nonoccupational disability provision in the CBA. A Department of Labor workers' compensation specialist issued an interim order directing employer/AIG to pay claimant TTD benefits retroactive to the date on which claimant began losing time from work as a consequence of her injury As a result, claimant received more in combined compensation and CBA wage replacement benefits than she would have received had the injury been deemed either occupational or non-occupational from the outset.

The Commissioner allowed employer/AIG to offset future TTD benefits that it paid for weeks during which claimant also received payment from employer for her accrued continuance of full salary days. The Commissioner was unwilling, however, to extend the offset to include the retroactive short-term disability benefits that employer paid. The Commissioner stated, "these issues are best resolved in the context of the agreement's grievance and dispute resolution system, not in the context of a workers' compensation proceeding."

The Commissioner's decision regarding the short-term disability benefits is erroneous. Employer does not need to resort to the grievance process to resolve this question. The "overpayment" here resulted solely from the Commissioner's order. See Yustin v. Department of Public Safety,. 2011 VT 20, ¶ 5.( employer could offset the sick wages that it paid to a claimant during a period of temporary total disability against workers' compensation benefits that it was ordered to pay for the same period.)

Our decision in Yustin rested on the "clear and strong policy against the double recovery of benefits" underlying the Act. Id. ¶ 7. We made clear in Yustin that an employer complies with the Act when a claimant "receive[s] full and direct payment of wage replacement from the employer during the disability period." 2011 VT 20, ¶ 10. That requirement was satisfied here, and neither the Act nor the CBA provides any grounds for obligating employer to pay more. The Commissioner's decision must be reversed to allow employer the offset to which it is entitled.

ROBINSON, J., dissenting. In deciding that policy concerns support the credit sought by employer in this case, the majority disregards the terms and structure of the workers' compensation statute, extends the authority of the Commissioner of the Department of Labor to matters well outside of the purview of the workers' compensation laws, disrupts existing contractual agreements and the ability of employers and disability insurers to enter into contracts for nonoccupational disability coverage, and creates unintended complexities in the calculation of workers' compensation benefits.

Absent statutory authority for applying an offset, the Commissioner has no authority to offset statutory workers' compensation benefits to account for transactions between employer and employee that took place outside of the workers' compensation proceedings. The majority's holding that not only authorizes, but apparently requires, the Commissioner to do so as a matter of law is inconsistent with our ordinary deference to the Commissioner on such matters, expands the Commissioner's responsibilities beyond her statutory authority and expertise, undermines the private contracts, introduces unnecessary complexity into the calculation of workers' compensation benefits, and expands this Court's prior decision on the subject far beyond its rationale and holding. I would affirm. I am authorized to state that Justice Dooley joins this dissent.

Dismissal for failure to prosecute is an adjudication on the merits. Court will not override settled procedural rules to prevent a windfall.

Deutsche Bank v. Pinette, 2016 VT 71 (filed June 24, 2016)

DOOLEY, J. Lender appeals from a decision that dismissed lender's claims for mortgage foreclosure and a deficiency judgment on the ground that they were barred by claim preclusion, as lender had previously instituted an identical action against borrower in 2013, which had been dismissed for failure to prosecute. On appeal, lender argues that because the 2013 action did not actually adjudge the enforceability of the note and mortgage, the dismissal did not have preclusive effect. We affirm.

Under Rule 41(b)(1)(ii), a court may, by its own motion, dismiss any action where "all parties against whom a judgment for affirmative relief is sought have failed to plead or otherwise defend as provided by these rules and the lender has failed to request or apply for a default judgment within six months of the filing of the action." Rule 41(b)(3) states that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits." The plain language of Rule 41(b) is therefore exceedingly clear—by its express terms, unless a trial court specifically says otherwise in its order, a dismissal predicated on a lender's failure to seek a default judgment operates as an adjudication on the merits.

That dismissal was with prejudice is explicitly part of Rule 41, and lender was on notice of it.

Lender argues that barring subsequent foreclosure actions in cases like those at bar would result in a "significant and unjustified windfall” for mortgagors. The consequence of a procedural default is usually a windfall to the other side. While borrower in this instance is enriched, and has kept a benefit he would otherwise be bound to relinquish, we cannot override settled procedural rules, essential to the swift and efficient administration of justice, in order to force a contrary result. See In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 21, 188 Vt. 262, 6 A.3d 713 ("[P]rocedural rules are devices to ensure fairness, uniformity and regularity of treatment to all litigants appearing before the courts, and to be meaningful, they must be enforced" (citation omitted)); Bloomer v. Gibson, 2006 VT 104, ¶ 14, 180 Vt. 397, 912 A.2d 424 ("The court does not abuse its discretion where it enforces the rules of civil procedure equitably, even against a pro se litigant." (emphasis added)).

Lender had numerous opportunities to avoid the "windfall" created by the dismissal with prejudice, either by moving for default judgment, appealing the dismissal or moving to reopen the dismissal. It would have been in a stronger position if the third complaint, the one in this case, reflected the earlier dismissal and the requested consequences of that dismissal; instead its filing of the virtually identical complaint in each action transmits a message that it expected no consequences from its default. The trial court acted well within the law, and we must uphold its decision.

Affirmed.

SCOVT NOTE: The rule announced in Pinette, that in mortgage foreclosure actions an involuntary dismissal for failure to prosecute operates as an adjudication on the merits, barring a mortgagee’s subsequent foreclosure claims based on the same default, is retroactive to pending cases. See Deutsche Bank National Trust Co, v. Watts, 2017 VT 57

Tradenames. Divided court affirms common law right to expired tradename, now registered to another.

TLOC Senior Living, LLC v. Bingham, 2016 VT 44 (filed April 8, 2016)

SKOGLUND, J. Defendant appeals from the trial court's declaratory judgment that, although defendant had been able to register a business name after plaintiff' failed to re-register the name, defendant was not entitled to use the name without violating plaintiff’s established common law rights. We affirm.

The court did not err in granting plaintiff the declaratory relief requested and denying the counterclaim. It was undisputed that plaintiff had been using and operating under the name for over five years, and that prior to that time, plaintiff's parent company and other affiliates had also used the tradename. Common-law rights in a trademark or tradename are created and preserved by use and not by registration. Nat'l Bank of Milwaukee v. Wichman, 270 N.W. 2d 168, 171 (Wis. 1978).

The law requiring companies to register any business aliases serves only to provide notice to those doing business with such companies. Thus defendant did not acquire superior rights by registering the name with the Secretary of State.

DOOLEY, J., dissenting. I agree with the proposition that rights to a trademark or trade name are established and ensured not by registration, but by use. But the result from the trial court is gridlock -- defendant is barred from using the name by virtue of plaintiff's common law rights to the tradename, and plaintiff also cannot use the name in commerce without violating the requirements of 11 V.S.A. § 1623. I would remand for consideration of the remedy of cancellation of plaintiff’s registration by the court. I am authorized to state that Justice Eaton joins this dissent.

PCR statute applies to juvenile delinquency proceedings.

In re D.C., Juvenile, 2016 VT 72 (filed June 24 2016)

DOOLEY, J. The Vermont Constitution provides, "The Writ of Habeas Corpus shall in no case be suspended. It shall be a writ issuable of right; and the General Assembly shall make provision to render it a speedy and effectual remedy in all cases proper therefor." VT Const. CH II, § 41.

Petitioner appeals the dismissal of a complaint for post-conviction relief (PCR) under 13 V.S.A. § 7131 alleging that the change-of-plea hearing that preceded his adjudication of juvenile delinquency was constitutionally inadequate. The superior court held that the PCR statute does not apply to juvenile delinquency proceedings and that the remedy available to petitioner under 33 V.S.A. § 5113 and Vermont Rule of Civil Procedure 60(b), was foreclosed because petitioner’s claim was not timely raised. On appeal, petitioner argues the fact he is over the age of majority and no longer committed to state custody does not moot the case, and that the PCR statutes permit juveniles to collaterally attack their adjudications. We agree, reverse the superior court’s order dismissing petitioner’s PCR complaint, and remand for further proceedings.

The State -- as appellee -- can raise mootness for the first time on appeal. Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) .

In a criminal case “when a petitioner moves under § 7131 to challenge a conviction while still in custody for that challenged conviction, the trial court possesses jurisdiction to hear the claim and the expiration of the custodial term will not render the cause moot.” In re Chandler, 2013 VT 10, ¶ 6. Adverse collateral consequences of a criminal conviction are presumed and need not be proven in the individual case to avoid mootness. 2013 VT 10, ¶ 13. The Chandler rule applies here because juvenile delinquency proceedings have significant collateral consequences. We hold that petitioner’s PCR case is not moot under Chandler.

Accordingly, we proceed to the question of whether a juvenile can challenge a delinquency adjudication using the PCR statute to collaterally attack an unconstitutional delinquency conviction, or a delinquency conviction based on a guilty plea that did not comply with Criminal Procedure Rule 11, or whether the juvenile must rely exclusively on 33 V.S.A. § 5113 for any post-conviction review challenge.

In consideration of the history and significance of the Great Writ, the construction of the applicable statutes, and case law from Vermont and other jurisdictions, we conclude a person adjudicated a juvenile delinquent may bring a PCR petition to challenge an admission of guilt based on due process and Criminal Procedure Rule 11 and that the availability of PCR relief was not impliedly eliminated by the enactment of 33 V.S.A. § 5113 and Civil Procedure Rule 60.

Like other citizens of this state, juveniles have a constitutional right to petition for relief from unlawful restraint from the government, Vt. Const. ch. II, § 41, a right that does not evanesce simply due to “the condition of being a boy.” In re Gault, 387 U.S. at 28. See Shuttle v. Patrissi, 158 Vt. 127, 129-30, 605 A.2d 845, 847 (1992) (noting Vermont’s Constitution guarantees writ “ ‘shall in no case be suspended’ ” and that, while originally limited to situations resulting in immediate release from custody, habeas corpus today protects “broad range of liberty interests” (quoting Vt. Const. ch. II, § 41)); Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971) (“While a legislature may regulate the procedure with respect to habeas corpus, and to some extent, the purposes for which it may be used, the writ may not be abrogated or its efficiency curtailed by legislative action.”).

Reversed and remanded for proceedings consistent with this opinion.

Blood alcohol evidence suppressed because defendant reasonably believed police were recording call and reasonably felt inhibited in conferring with counsel.

 State v. Gagne, 2016 VT 68 (filed June 10. 2016).

ROBINSON, J. Before trial, defendant moved to suppress the results of his alcohol breath test on the ground that he was not able to meaningfully communicate with his lawyer before submitting to the test due to his belief—which turned out to be well-founded—that his conversation with counsel was being recorded by the police. The trial court denied the motion, and a jury convicted defendant of driving under the influence, On appeal, defendant argues that the trial court erred by denying his motion to suppress. We agree and reverse the conviction for driving under the influence.

In this case the officer forgot to turn off the recording device when defendant was about to speak to his attorney by phone. Defendant never asked the officer if he was being recorded, nor did he request that the police turn off the recording device, but throughout the booking process, defendant repeatedly stated that he knew that everything was being recorded. After a thirty minute conversation between defendant and counsel, defendant agreed to a breath sample, which resulted in a blood-alcohol concentration (BAC) of 0.121%.

Defendant moved to suppress the breath test results, arguing that defendant's belief that his conversation with counsel was being recorded caused him to feel inhibited in seeking legal advice. The court concluded that, although defendant thought his conversation was being recorded, his belief was not objectively reasonable, and he was therefore not entitled to suppression. That conclusion is a legal conclusion that we review anew, without deference.

We apply an objective test, asking whether a reasonable person in the defendant's position would have reasonably felt inhibited in communicating with counsel such that he or she was denied meaningful consultation with an attorney.

Given the officer's silence in response to defendant's multiple statements that he knew he was being recorded, we conclude that a reasonable person in defendant's position under the circumstances of this case would feel inhibited in conferring with counsel. Accordingly, the motion to suppress should have been granted, and we reverse the judgment of conviction for driving under the influence.

Landlord tenant. Termination of long-term ground lease for waste. Trial court cannot balance the equities and award damages in lieu of writ of possession.

Mongeon Bay Properties, LLC v. Mallets Bay Homeowner's Association, 2016 VT 64  (filed June 10, 2016)

ROBINSON, J. This case calls upon us to determine whether, and under what circumstances, a court may decline on equitable grounds to enforce a provision in a long-term ground lease giving the lessor the right to terminate the lease and reenter the premises in the event of a default. Plaintiff MBP sued defendant Association seeking to void a multi-year ground lease for property abutting Lake Champlain on account of alleged breaches of the covenants in that agreement.  After a bench trial, the trial court concluded that the Association had violated its obligations under the lease by failing to reasonably maintain the embankments abutting Lake Champlain to protect them from erosion. However, the court declined to enforce the forfeiture clause in the lease against the Association, and awarded MBP damages to enable it to undertake the necessary restoration and bank protection. MBP appeals the trial court's award of damages in lieu of forfeiture. We reverse the court’s refusals to declare termination of the lease and to issue a writ of possession to MBP, and remand for reconsideration of MBP's remedy.

The trial court explained that the primary interest of the lessor under a long-term ground lease is return of the land itself at the end of the lease in substantially the same condition as when the lease was initiated, absent "normal wear and tear" that would reasonably be expected over the forty-year lease term. The trial court concluded that the Association's failure to adequately address lakeside erosion, causing substantial injury to the leased property, amounted to "waste."  Despite its ruling in MBP's favor the court concluded "lease forfeiture here would be especially inequitable, and a sanction entirely out of proportion to the lease violations." Concluding that an award of damages for remediation would afford adequate relief, the court awarded MBP a judgment for $135,000—the expected cost of remediation and restoration of the bank.

MBP contends that the trial court lacked the authority to conduct the kind of equitable balancing that it undertook in this case and that the trial court should have enforced the terms of the lease. The ground lease provided, "in the event that an Event of Default shall have occurred, [and] upon issuance of a writ of possession, the rights of the Lessee . . . shall immediately cease and become void." It further stated, "[i]f any Event of Default shall have occurred and be continuing, whether or not the term of this lease shall have been terminated pursuant to the Lease, the Lessor may enter upon and repossess the Land or any part thereof pursuant to Vermont law."

Although the law disfavors forfeiture clauses, this Court has never declined to enforce a contractual forfeiture provision when the landlord timely invoked the forfeiture right. This is a case of first impression insofar as the Association urges us to rely on our general policy disfavoring forfeitures to authorize the trial court to invoke general equitable considerations in declining to enforce a contractual agreement providing for forfeiture in the event of default, even though the lessor timely invoked the clause and elected termination.  We decline to do so for several reasons.

 First, our precedent does not support setting aside clearly applicable, contracted-for remedies. Second, the Restatement provides that termination by the landlord is an available remedy for waste as long as landlord gives tenant opportunity to restore leased property to its former condition before terminating lease. See Restatement (Second) of Property: Landlord & Tenant § 12.2(2).  Finally, our statutes contemplate the ejectment of tenants on the basis of a breach of a stipulation contained in a lease. 12 V.S.A. § 485.

For these reasons, we conclude on the basis of the trial court's findings that MBP was entitled to terminate the ground lease as a matter of law, and is entitled to a writ of possession.

Reversed and remanded for determination of a remedy in light of the above.

SCOVT NOTE. For the case after remand see Mongeon Bay Properties v. Mallets Bay, 2017 VT 27(Reversed for failure to exercise discretion. Trial court had discretion to stay writ of possession for at least a short period notwithstanding termination of lease and Court’s earlier mandate directing change of possession.)

One wrongful death distribution is not binding on future distributions.

In re Estate of Dezotell, 2016 VT 14 (filed 2/5/2016)

REIBER, C.J. The questions presented by this pro se appeal by decedent's daughters are 1) whether, in distributing the proceeds of a wrongful-death settlement to the decedent’s spouse and children, the trial court was bound by the provisions of an earlier settlement distribution, and, 2)  if not, whether the court erred in curtailing an evidentiary hearing to divide the settlement in proportion to the pecuniary injuries suffered. We hold that that the trial court correctly concluded that it was not bound by the prior order, but erred in limiting the evidentiary hearing. Accordingly, we reverse and remand.

At the time of his death, decedent had had six daughters and had been married for about eight months to his wife Maria who was pregnant with the couple's first child Roger.  Maria was appointed to serve as the administrator of the estate, and petitioned the superior court under 14 V.S.A. § 1492(c) to distribute settlement proceeds that totaled about $135,000.

The statute provides "[s]uch distribution, whether of the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries suffered, the proportions to be determined . . . in such manner as the superior court . . . shall deem proper and after a hearing at such at such time as the court or judge may direct, upon application made by such personal representative or by the wife, husband or any next of kin." 14 V.S.A. § 1492(c).

Following an evidentiary hearing, the court issued a written ruling in awarding $100,000 to Maria and Roger, $25,000 to a minor daugher, Melissan, with the "primary goal of conserving as much as possible of this asset for Melissan's college or other educational expenses", and $2,500 each to the remaining adult daughters, noting that none of the daughters could have realistically expected any significant financial assistance from decedent.

  

Five years later, Maria  again petitioned the court for a distribution of additional settlement proceeds of about $205,000. The petition stated that the beneficiaries had agreed to  receive the same proportion of the new settlement that they had received under the first.  The court approved the stipulated distribution.

Another five years later Maria filed a third petition for distribution of an additional $204,000 settlement. She proposed to distribute the money using the same percentage formula as the second distribution, with one exception for Melissan, who had come of age.

The matter was contested. The court ruled that it was not bound by the prior distributions in the current proceeding and set the matter for a new hearing  in order to determine the division of the proceeds from the settlement. After taking some testimony the court adjourn the hearing and later issued a written ruling explaining that it had concluded further evidence was unnecessary.

The court awarded 1.88% of the settlement funds to each of decedent's daughters, and the balance of 88.72%, to Maria on behalf of herself and Roger.

On appeal, daughters contend the trial court was collaterally estopped from reducing Melissan's share of the third settlement. 

This argument is unpersuasive. Successive distributions—even in the same case—may reflect entirely different "equities" and "expectations" depending upon the ages of the beneficiaries at the time, their economic circumstances and needs, previous awards received, and the amount available for distribution. \  Each of the three distribution petitions at roughly five-year intervals presented, by definition, a separate issue for the court to determine a fair and equitable distribution of each settlement in light of the circumstances then presented. 

The trial court was correct, therefore, in concluding that a fair apportionment of the third settlement should be measured, in part, by the parties' current circumstances. This was reflected in its decision to reduce Melissan's percentage based on the fact that she was no longer a minor.

We conclude however that the trial court erred in failing to apply this principle consistently to the other beneficiaries or the proceeding as a whole when it ultimately ruled that further evidence was unnecessary.and t that it would not "revisit[ ]" the 2004 finding that the daughters could not have reasonably expected much financial assistance from their father, Although the finding that decedent—while he was alive—had never been able to provide a great deal for his daughters in material terms certainly remained true, it did not compel the conclusion that 1.88% of the third settlement was all they could ever reasonably expect, or all that decedent would ever want them to have, upon his death.

We conclude, accordingly, that the trial court erred in restricting the daughters’ introduction of additional evidence relevant to the distribution of the third settlement in proportion to the injuries from their loss, and therefore reversed and remanded for further proceedings consistent with the views expressed herein.

ROBINSON, J., dissenting. Under Vermont’s statute governing wrongful death actions, damages are determined “with reference to the pecuniary injuries” of the surviving spouse and next of kin, and are distributed among them in proportion to their respective injuries. 12 14 V.S.A. § 1492(b). The determination of the wrongful-death-act beneficiaries’ pecuniary injuries is ultimately one of fact. For that reason, when a court adjudicates the amount of the damages awardable to the personal representative of the beneficiaries on account of a wrongful death, or the relative proportion of those damages to be allocated to each of the respective statutory beneficiaries, that determination is an adjudicated fact that has preclusive effect in subsequent actions when the criteria for collateral estoppel are satisfied.

 In this case, those criteria are satisfied, and the earlier order adjudicating the relative proportion of the statutory beneficiaries’ pecuniary damages has preclusive effect in subsequent proceedings in which the relative proportion of the statutory beneficiaries’ pecuniary damages is at issue.

 In asserting that the wrongful death statute requires a “fair and equitable distribution,” , of each wrongful death settlement in light of the circumstances then presented, the majority adopts a framework that is at odds with the wrongful death statute and our cases, and embraces a holding that creates significant practical problems. 

For these reasons, I dissent. The plain language of the wrongful death statute, and our case law applying that statute, make it clear that the damages that can be awarded in a wrongful death case are determined with reference to the pecuniary injuries of the surviving spouse and next of kin, that the proceeds of a wrongful death action are distributed among statutory beneficiaries in proportion to their respective injuries, and that the factors driving the calculation of wrongful death damages and the distribution of wrongful death proceeds are one and the same. 

I would treat the proportional distribution reflected in the 2004 order as preclusive, and would distribute the current proceeds in the same proportion.

The yellow centerline is not a guideline.

State v. Howard, 2016 VT 49 (filed 4/29/2016)

REIBER, C.J. In this driving under the influence case, the State appeals the granting of defendant's motion to exclude evidence collected from a traffic violation stop of his car. The trial court granted the motion and dismissed the case because it concluded that the trooper who conducted the stop did not have a reasonable and articulable suspicion that defendant committed a traffic violation. We reverse and remand.

The inquiry in cases involving traffic violation stops is merely whether the officer had a reasonable suspicion of a wrongdoing, not whether the defendant actually committed a wrongdoing.

Under 23 V.S.A. § 1031, drivers are generally required to drive on the right half of the roadway.  If the road has a center line, touching the center line is not in itself a traffic violation, but any crossing of the center line—no matter how slight—is a traffic violation.

The court specifically found that defendant crossed the center line. Crossing the center line gave the trooper reasonable suspicion that defendant committed a traffic violation as soon as this crossing occurred.

Reversed and remanded for further proceedings.

SCOVT NOTE: 23 V.S.A. § 1031, driving to right, does not apply on a multi-lane roadway restricted to one-way traffic. See Id. § 1031(a)(4);  State v. Sinquell-Gainey, 2022 VT 19 [filed 5/6/2022].

Statute prohibiting lewdness applies only to acts relating to prostitution.

In re K.A., 2016 VT 52 ( filed 4/29/2016)

SKOGLUND, J. In this case, K.A.-- a twelve-year-old, middle-school boy -- committed inappropriate acts outside his school, and was adjudged delinquent under a statute prohibiting lewd acts. We reverse because K.A.'s acts do not constitute a crime under the statute under which he was charged.

The trial court entered an adjudication of delinquency on a charge of an attempted lewd act under 13 V.S.A. § 2632(a)(8), finding that the evidence showed that K.A. attempted to engage in a lewd act by trying to put his hands down S.K.'s pants against her will.

Section 2632(a)(8) is located in a subchapter governing prostitution and provides that "[a] person shall not: . . . [e]ngage in prostitution, lewdness or assignation." The legislative history and organization of Chapter 59 lead inescapably to the conclusion that Subchapter 2 specifically governs the procurement or solicitation of a person for the purpose of prostitution. It follows that § 2632(a)(8) prohibits only procuring or soliciting a person for lewd acts relating to prostitution.

Because the legislative history and text of the statute demonstrate that § 2632 was intended to proscribe "lewd" acts relating to prostitution, it was plain error to charge the unwelcome touching on the playground as an act of prostitution. The charge against K.A. fails for insufficient evidence that his actions were an attempt to engage in a lewd act of prostitution.

K.A. did not commit a delinquent act of prostitution. The judgment of delinquency is reversed.

Family law. Court cannot enforce a separation agreement without considering whether it is fair and equitable pursuant to the relevant statutory factors at the time of the final hearing.

Lourie v. Lourie, 2016 VT 57 (filed 5/13/2016)

EATON, J. Husband appeals from a final divorce order, arguing that the family division of the superior court failed to consider the relevant statutory factors before incorporating the parties' pretrial separation agreement into the divorce order. We reverse and remand.

The family court found that “subsequent events and [husband’s] current financial circumstances have made it difficult, if not impossible, for [husband] to currently comply with that $4000 per month obligation, but the agreement appears to have been mutually arrived at and was fair, reasonable and appropriate at the time” it was executed. The court concluded that the agreement is valid and enforceable, and that it would “not perform a separate or independent analysis under 15 V.S.A. § 752, and [would] not specifically consider the respective factors."

Husband contends that the court abused its discretion by adopting the separation agreement without considering its fairness in light of the statutory factors contained in 15 V.S.A. § 752 for awarding maintenance. According to husband, the family court’s express decision not to conduct a statutory analysis resulted in the court failing to consider his inability to pay the maintenance obligation contained in the separation agreement.

Husband relies on  Pouech v. Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70 where we concluded under the circumstances of that case that “the court should have given the parties an opportunity to present evidence on the fairness of their stipulation,” after which “the court had the discretion to reject the stipulation on grounds that it was inequitable in light of the relevant statutory factors.”

We agree with husband that the family court failed to exercise its discretion to determine whether the parties’ agreement was fair and equitable pursuant to the relevant statutory factors at the time of the final hearing. Accordingly, we remand the matter to the family court to make a determination based on the relevant statutory factors as to whether the parties’ agreement should be incorporated into the final divorce order.

The superior court’s decree of divorce is affirmed; however, its maintenance award, property division, and judgment of arrears are reversed.

Zoning. Failure to appeal decision of "zoning specialist" does not preclude review of later decision of zoning administrator.

In re Burns Two-Unit Residential Building, 2016 VT 63 (filed May 27, 2016)

DOOLEY, J. This case is about modifications to a two-unit residential building in Burlington. A group of Burlington residents (neighbors) appeal a decision of Environmental Division declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). On appeal to this Court, neighbors argue that their challenge is not precluded under § 4472(d) because the prior decision had not been rendered by the zoning zdministrator as the statute requires. We agree and reverse.

A neighborhood property owner submitted a zoning enforcement complaint form to the city that stated applicants were conducting modifications to convert a single-family home into two apartments without any zoning permit from the city. A “zoning specialist” responded by letter dated May 15, 2014 that the Code Enforcement Office had determined that the use was presumed valid because the building had been used as a duplex since at least the time of adoption of the 1973 Burlington zoning ordinance. The letter stated that the decision was appealable to the Development Review Board, but neither the complainant nor any other interested party appealed.

On June 3, 2014, applicants obtained a separate “zoning “nonapplicability determination. Neighbors appealed this determination to the DRB and to the Environmental Division, which granted applicants’ motion for summary judgment. The court concluded that the use of the property as a duplex was “conclusively decided in [the] May 2014 letter,” a decision that became final and binding when it was not appealed under 24 V.S.A. § 4472(d).

Neighbors argue that their appeal from the DRB to the Environmental Division is not barred by 24 V.S.A. § 4472(d) because the letter to the original complainant was authored by an employee of the Code Enforcement and § 4472(d), by its terms, applies only to decisions of a zoning administrator.

Section 4472(d) provides that if any interested person fails to appeal to the appropriate municipal panel “under § 4465 of this title . . . all interested persons affected shall be bound by that decision or act of that officer.” Section 4465(a) states that an interested person “may appeal any decision or act taken by the administrative officer in any municipality” (emphasis added).

We are reluctant to apply a broad preclusion rule in this case. Neighbors had no way of knowing that a complaint to the Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of nonapplicability of permit requirements was there public notice of applicants’ plans and the zoning administrator’s approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division.

The Environmental Court erred in concluding that § 4472(d) applied and precluded review. The letter dated May 15, 2014 was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, the letter did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed.

Reversed

Statute of limitations applies to bar State's claim for groundwater contamination, notwithstanding exemption for state property.

State v. Atlantic Richfield Company, 2016 VT 61 (filed May 27, 2016)

ROBINSON, J. This interlocutory appeal calls upon us to decide whether the general six-year limitations has run on the State of Vermont’s claims against defendants for injury to state waters due to groundwater contamination from gasoline additives. The trial court dismissed the State’s claims on the basis of the statute of limitations, insofar as they are predicated on generalized injury to state waters as a whole. On appeal, the State argues that 12 V.S.A. § 462 exempts the State’s claims from the statute of limitations, and, alternatively, that the State’s claims arising under 10 V.S.A. § 1390, a statute that establishes a state policy that the groundwater resources of the state are held in trust for the public, are not time barred because that statute became effective less than six years before the State filed its complaint. We affirm.

Defendants moved to dismiss the complaint as time-barred under the general six year statute of limitations for civil actions. See 12 V.S.A. § 511. Defendants noted that the Legislature’s ban on MTBE in Vermont was enacted in May 2005. For this reason, defendants argued, the State was indisputably aware of the alleged injury to Vermont’s waters due to MTBE more than six years prior to its June 5, 2014 complaint.

In opposition, the State argued that: (1) its claims, which arise from injury to state lands and public trust resources, are exempt from any limitations period, see 12 V.S.A. § 462; (2) even if a limitations period did apply, the State’s cause of action based on 10 V.S.A. § 1390 accrued on June 9, 2008, when that statute became effective, and the State filed suit within six years of the Legislature’s creation of that new cause of action

(1) 12 V.S.A. § 462

12 V.S.A. § 462 provides: “Nothing contained in this chapter shall extend to lands given, granted, sequestered or appropriated to a public, pious or charitable use, or to lands belonging to the state.” The section appears in chapter 23 of Title 12, which includes the general six-year limitation for civil actions, 12 V.S.A. § 511.

The State argues that this statute relating to “lands belonging to the state” applies to groundwater held by the state in trust for the public. Second, the State contends that the statute’s bar to application of the statute of limitations extends beyond claims of adverse possession or prescriptive rights to claims based on environmental injuries.

Based on the history surrounding its enactment, our cases, the language of the statute, and policy considerations,we conclude that § 462 does not exempt the State’s claims from the statute of limitations because the State’s claims are not the kind of claims contesting property interests in land to which the statute applies.

Although we have never squarely considered the question, our decisions have consistently reinforced the understanding that § 462 was designed to prevent adverse-possession claims with respect to interests in state property, or property dedicated to a public, pious, or charitable use. Our longstanding understanding of § 462 is consistent with the language of the statute itself. Moreover, sound policy considerations reinforce our longstanding interpretation.

We conclude the trial court properly interpreted § 462 as limited to claims of adverse possession (or other claims of property interests arising by prescription). The exemption is thus inapplicable in this case

(2) 10 V.S.A. § 1390

10 V.S.A. § 1390 codifies the Legislature’s recognition that the groundwater of Vermont is a precious, finite, and invaluable resource. The following language of the statute is the basis of the State’s argument here: “The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the State of Vermont . . .” 10 V.S.A. § 1390(5). The effective date of this statute was June 9, 2008.

We conclude that even if § 1390 did create a new cause of action that was retroactively enforceable, that would not empower the State to apply the statute to injuries discovered more than six years prior to its complaint. When the State filed its complaint on June 5, 2014, the general six-year statute of limitations precluded claims arising from injuries that were discovered more than six years before. Even if § 1390 created a new cause of action for the State, and even if the statute authorized retroactive application of this new cause of action—questions we do not decide—the six-year limitation would bar the State’s § 1390 claims to the extent that it relies on generalized harm to the groundwater’s of the state as a whole.


For the above reasons, we affirm the trial court’s determinations that 12 V.S.A. § 462 does not exempt the State’s claims from operation of the applicable statute of limitations, and its conclusion that the State’s claims under 10 V.S.A. § 1390 are not all timely as a matter of law. Affirmed.

Twelve percent statutory interest passes federal constitutional muster.

Concord General Mutual Insurance Co. v. Gritman, 2016 Vt. 46 (filed April 22, 2016)

ROBINSON, J. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs for damage to their vacation home. Stinson contends that the pre and postjudgment interest rate awarded by the trial court was unconstitutional under the U.S. and Vermont Constitutions. We affirm.

Stinson argues that the trial court's award of statutory interest pursuant to 9 V.S.A. § 41a(a) (prejudgment interest) and 12 V.S.A. § 2903(c) (postjudgment interest) is unconstitutional, because it deprives him of property without due process of the law in violation of Fifth and Fourteenth Amendments to the U.S. Constitution. 

Stinson also raises a constitutional challenge under Articles 1, 4, 9, and 18 of the Vermont Constitution; however, he fails to provide any analysis tying his challenge to the statutory interest rates to those provisions. He simply raises the provisions and never elaborates on these contentions other than to list the provisions. We will not address state constitutional claims where they are insufficiently raised and inadequately briefed.

All parties agree that the rational-basis test applies to Stinson's Federal constitutional claim. If there are any reasonably conceivable state of facts that could provide a rational basis for the 12% rate, the statute must be upheld. Providing one contrary explanation does not in and of itself show that the 12% rate is not reasonably related to the statute's purpose. 

Although we acknowledge that the statutory rate is incongruous in the context of today's market conditions, we conclude that the 12% rate is reasonably related to making plaintiffs whole, and as a result, passes rational-basis review.

Attorney’s fees. Award of attorney's fees for public health enforcement was not authorized by statute nor warranted under an equitable exception to the American Rule.

Town of Milton Board of Health v. Brisson, 2016 VT 56 (filed May 6, 2016).

SKOGLUND, J. The Town of Milton successfully brought an action to enforce a town order requiring defendant to remediate problems with his residence that constituted a public health hazard. Defendant does not contest either the civil penalty or the compensatory costs for engineering fees assessed against him by the court, but contends that the court's award of attorney's fees was neither authorized under the applicable statute nor warranted under an equitable exception to the American Rule requiring each party to bear the cost of its own attorney's fees. We agree and therefore vacate the attorney's fee award.

The provision at issue in this case is 18 V.S.A. § 130(b)(5), which provides that the court may order "reimbursement from any person who caused government expenditures for the investigation and mitigation of the public health risk or the investigation, abatement, or removal of public health hazards." Id. § 130(b)(5). The Town argues that the plain meaning of the term "governmental expenditures" in § 130(b)(5) encompasses its attorney's fees incurred in its enforcement action against defendant. We disagree.

Attorney’s fees are a unique type of expense that is subject to special rules and treatment. Generally, when the Legislature has intended to authorize the award of attorney's fees in a particular action—beyond that permitted under the common law—it has done so explicitly. The American Rule disallows attorney's fees absent an express statutory authorization. Accordingly, we hold that § 130(b)(5) does not authorize the superior court to award attorney's fees as part of the reimbursement allowed therein.

The Town also argues that even if § 130(b)(5) does not authorize an award of attorney's fees, the superior court acted within its discretion in awarding the fees in the alternative based on an equitable exception to the American Rule. Again, we disagree.

The equitable power to award attorney's fees as an exception to the American Rule "must be exercised with cautious restraint . . . only in those exceptional cases where justice demands an award of attorney's fees." This is not a case where the interests of justice demanded an award of attorney's fees. The court made no finding of bad faith or of vexatious or wanton conduct on the part of defendant.

DOOLEY, J., dissenting. Because attorney's fees plainly fall within the statutory language allowing recovery of expenditures incurred in the enforcement of public health orders and because an award of such fees is in keeping with the statute's overall remedial purpose, I would hold that the statute allows recovery of the attorney's fees requested in this case, and affirm. I dissent from the majority's holding to the contrary.

The majority ignores a relevant line of cases beginning with Key Tronic Corp. v. United States, 511 U.S. 809, 811 (1994), (addresing the availability of attorney's fees for private plaintiffs, as part of pollution “response costs”). See also United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998)(addressing whether government agency can recovery attorney’s fees as part of s remediation expenses) To the extent we look to persuasive authority to decide this case, we should follow Chapman and Key Tronic. I am authorized to state that Justice Eaton joins this dissent.