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.