SCOVT affirms exclusion of evidence of medical causation that lead to denial of counterclaim for assault. Lay testimony as to medical causation is inadmissible. Statements in medical records as to the inception or cause of a condition or symptom are inadmissible under V.R.E. 803(4)—unlike the corresponding federal rule— even if pertinent to diagnosis or treatment.

Sweet, v. St. Pierre, 2018 VT 122 [filed 11/2/2018]


CARROLL, J. Defendants cross-appeal, arguing that the court erroneously excluded evidence relevant to their assault claim. We affirm.

Prior to trial, plaintiffs moved to exclude any evidence, such as medical records or testimony, that Roy St. Pierre suffered a stroke or any other medical or psychological injury as a result of the alleged assault. The court granted the motion, ruling that proof that the alleged assault caused Roy St. Pierre's medical condition required expert medical testimony. The court ultimately found that defendants failed to prove that Preston Sweet assaulted Roy St. Pierre by threatening to stab him with a screwdriver. It concluded that the statement was a joke and could not reasonably be found to have caused the psychological and physical injuries alleged by defendants in the absence of expert testimony.

There was no abuse of discretion in excluding the medical records. The medical records were hearsay. V.R.E. 801. Even if they were theoretically admissible under the exception for business records, plaintiffs did not disclose or call any witness who could lay the proper foundation for their admission. See V.R.E. 803(6) (providing that business records must come into evidence through testimony of custodian or other qualified witness).

Furthermore, to the extent that the medical records contained statements about the inception or cause of defendant’s alleged symptoms, such statements would not be admissible under V.R.E. 803(4). Under V.R.E. 803(4)—unlike the corresponding federal rule—statements relating to the inception or cause of a condition or symptom are not admissible even if pertinent to diagnosis or treatment.

The trial court also acted within its discretion in excluding any testimony from lay witnesses that Roy St. Pierre’s stroke or other symptoms were caused by the alleged assault. As the trial court correctly noted, expert testimony is ordinarily required to prove medical causation. Brace v. Vergennes Auto, Inc., 2009 VT 49, ¶ 9, 186 Vt. 542, 978 A.2d 441 (mem.); Wilkins v. Lamoille Cty. Mental Health Servs., Inc., 2005 VT 121, ¶ 16, 179 Vt. 107, 889 A.2d 245

Defendants have not shown that "the facts to be proved are such that any layman of average intelligence would know from his own knowledge and experience that the [alleged assault] was the cause of the injury," rendering expert testimony unnecessary. Egbert v. Book Press, 144 Vt. 367, 369, 477 A.2d 968, 969 (1984) (per curiam). We accordingly see no reason to disturb the evidentiary decision below.

Failure to use turn signal justifies stop. In DUI case SCOVT affirms denial of motion to dismiss that argued failure to signal a turn while in designated turning lane was not illegal.

State v. Kevin W. Cook, 2018 VT 128 [filed 11/30/2018]


EATON, J. Following his conditional guilty plea to driving under the influence, defendant Kevin Cook appeals the trial court’s denial of his motion to dismiss, in which he argued that his failure to signal a turn was not illegal under the circumstances and thus did not provide a reasonable, articulable suspicion for the arresting officer to stop his vehicle. We affirm.

Preparing to turn right onto Main Street, defendant drove into the right-turn-only lane . An officer watched defendant make the right turn from the designated right turn lane without signaling and stopped defendant’s car for that reason. During the traffic stop, the officer smelled alcohol on defendant and conducted field-sobriety tests. Ultimately, defendant was charged with driving under the influence of alcohol (DUI).

Defendant contends that he was not required to use his signal because the only legal path his vehicle could take from a right-turn-only lane was to turn right, as he did.

In relevant part, § 1065 provides that “[a] right or left turn shall not be made without first giving a signal of intention either by hand or by signal in accordance with section 1064.” 23 V.S.A. § 1065(a). Section 1064 explains that “[t]he signals provided for in section 1065 . . . shall be used to indicate an intention to turn, change lanes, or start from a parked position,” id. § 1064(e).

The Vermont Legislature could have enacted turn-signal statutes that specifically exempt the requirement of turn-signal use when turning in the anticipated direction from a turn-only lane. It is not up to us to substitute our judgment for the Legislature’s, even were our judgment to differ.

Because Vermont’s motor-vehicle statutes required defendant to signal before turning, we conclude that the officer here had a reasonable, articulable suspicion of wrongdoing. The motion to dismiss was properly denied.

Divided Court affirms judgment on a verdict for conversion of proceeds of sale, breach of fiduciary duty, and unjust enrichment, but reverses punitive damages

Eugene W. Beaudoin, Derivatively on Behalf of The New England Expedition Ltd. Partnership II & IV v. Barry E. Feldman, The New England Expedition-Colchester LLC and Colchester Managing Member Inc., 2018 VT 87  [filed 8/17/2018]

SKOGLUND, J. In this commercial dispute involving the sale of a grocery store, defendants Barry Feldman, the New England Expedition-Colchester, LCC (NEE-Colchester), and Colchester Managing Member, LLC (CMM), ask this Court to strike jury-awarded punitive damages and to find that the trial court erred in numerous evidentiary rulings, in denying defendants’ motion for judgment as a matter of law, and in denying defendants’ motion for a new trial. For the below-stated reasons, we strike the punitive damages, but affirm the remainder of the trial court’s rulings and orders.

Feldman appeals, arguing that the trial court: (1) erred by allowing the jury to consider punitive damages in this commercial dispute; (2) abused its discretion by allowing Beaudoin to introduce evidence of the Rhode Island contempt order; (3) abused its discretion by excluding evidence of Beaudoin’s pre-2005 tax returns; (4) abused its discretion by admitting evidence of Feldman’s additional real estate projects; (5) erred by denying Feldman’s motion for judgment as a matter of law for Beaudoin’s failure to join allegedly indispensable parties; and (6) erred in denying Feldman’s motion for a new trial after Beaudoin’s counsel’s closing statement remarks.

Where a party failed to object to jury instructions pursuant Rule 51(b), it properly preserved its claim “that the trial court erred in submitting plaintiffs’ demand for punitive damages to the jury” by seeking judgment as a matter of law in compliance with Rule 50(a) and  renewing its motion after entry of the judgment as required by Rule 50(b). Murphy v. Stowe Club Highlands, 171 Vt. 144, 154, 761 A.2d 688, 695-96 (2000). Because Feldman challenges the presentation of punitive damages to the jury in the first, Feldman properly preserved his claim for appellate review by complying with V.R.C.P. 50(a) and (b), regardless of “whether or not [he] also objected to the jury instruction.”

An award of punitive damages requires a showing of two essential elements—“wrongful conduct that is outrageously reprehensible” and “malice, defined variously as bad motive, ill will, personal spite 9 or hatred, reckless disregard, and the like.” The “conduct need not only be wrongful, but truly reprehensible,” and malice must be proven by “some showing of bad motive.”

Not every claim of bad faith, conversion, or breach of fiduciary duty warrants a punitive-damages award. The dispute must result in behavior that is truly reprehensible or egregiously awful. The evidence in this case did not rise to that level This was a dispute between two businessmen. While Feldman’s conduct may have been wrongful, intentional, and even actionable—as evidenced by the conversion, unjust enrichment, and breach of fiduciary duty judgments against him—as a matter of law, it falls short of the type of egregious behavior this Court has found to support punitive damages in the past.  The record before this Court “cannot support a punitive award given the absence of outrageously reprehensible conduct and the lack of actual or legal malice towards” Beaudoin. Fly Fish Vermont, 2010 VT 33, ¶ 17. The trial court erred when it submitted the question of punitive damages to the jury because there was insufficient evidence to support it, and thus this Court must strike the punitive damages awarded by the jury.

ROBINSON, J., dissenting. The trial court’s refusal to admit highly relevant evidence bearing on the critical issue in this case was not supported by its reasoning and exceeded its discretion. I dissent from the majority’s affirmance of the trial court’s exclusion of evidence of Beaudoin’s pre-2005 tax returns, and I would reverse

I cannot agree that the trial court’s conclusion that the proffered evidence was irrelevant was within its broad discretion. I respectfully dissent. I am authorized to state that Chief Justice Reiber joins this dissent

Divided Court affirms suppression under Chapter I, Article 11 of the Vermont Constitution, of fruits of warrantless “open fields” search, despite argument that purpose of search was to enforce fish and game regulations and defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute.

State v. Ronald Dupuis, 2018 VT 86 [filed August 17, 2018]

ROBINSON, J. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of “open fields” when the landowner objectively demonstrates his or her intent for privacy through actions such as posting “no trespass” signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont’s regulations for posting against hunting. The State appeals from the trial court’s grant of defendant Ronald Dupuis’s motion to suppress evidence arising from a game warden’s warrantless search of his property, arguing that because defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

The State’s argument follows two steps. First, because defendant did not comply with § 5201 by failing to specify in his signs that hunting was prohibited, and by failing to record the signs with his town clerk for that calendar year,  members of the public could legally enter his property in order to hunt, notwithstanding his general notices against trespass. Second, because hunters could lawfully enter his property for hunting purposes, it follows that he had no reasonable expectation of privacy that would prevent game wardens seeking to enforce state fish and game laws from entering his property.

 The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. We reject the State’s suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property.

  

It does not follow that a landowner who has effectively put strangers on notice that they are not welcome on the private property surrenders the corresponding reasonable expectation of privacy by failing to take the more burdensome specific steps required to cut off the narrower right of access afforded to hunters. Defendant’s failure to provide notice satisfying the statutory requirements for posting against hunters does not constitute willing exposure of his property to the public—or to law enforcement.

CARROLL, J., dissenting.  The question in this case is not one of fact—whether the landowner put in place sufficient tangible indications such that law enforcement should have known a warrant was required for entry—but one of law—whether posting against general trespassing, but not against entry for purposes of hunting or fishing, is sufficiently indicative of a landowner’s reasonable expectation of privacy to preclude all law enforcement entry regardless of the purpose of the entry. Vt. Const. ch. II, § 67 reserves a right for Vermonters to access privately held lands for the purposes of taking fish and game under regulations promulgated by the Commissioner of Fish and Wildlife as long as those lands are not “inclosed.” It is questionable whether the objective inquiry in the reasonable expectation of privacy test is satisfied here where our Constitution reserves a right of entry onto private lands for persons engaged in taking wild fish and game and defendant took no action to exclude those engaged in the activity. And if the objective prong of the reasonable expectation of privacy test is not met, then the test in general is not met, and a warrant is not required for law enforcement entry. I believe that a rule granting the State the ability to enforce fish and game regulations where the public is, in fact, permitted to hunt and fish is simple logic I am authorized to state that Justice Eaton joins this dissent.

SCOVT affirms summary judgment that neither landlord nor guest of tenant/dog-owner owed a duty to passerby injured when pit bull escaped because they had no "reason to know" that the dog in question posed an unreasonable risk

Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores , 2018 VT 80 [filed 8/10/2018]

REIBER, C.J. In this negligence action, we consider whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant’s pit bulls to a third person outside of the landlord’s property. We conclude that plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirm.

A landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. To survive summary judgment on their negligence claim against landlord under the above rule, plaintiffs had to present admissible evidence from which a jury could conclude that at the time of entering the lease, landlord knew or had reason to know the tenants’ dogs posed an unreasonable risk to persons outside the land. Plaintiffs did not meet this burden.

Liability under § 379A turns on whether a landlord “knew or had reason to know” at the time of the lease that the particular animal in question is abnormally dangerous. the phrase “reason to know” does not imply a duty to investigate: Restatement (Second) of Torts § 12, cmt. a. Landlords are not obligated to conduct background checks on tenants’ pets.

A dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm,. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Assuming for the purpose of summary judgment that the jury could find the guest was acting as the dogs’ keeper, plaintiffs’ negligence claim against him still fails, for the same reason as their claim against the landlord: they have not shown that the guest knew that the dogs posed a threat to anyone. Plaintiffs have failed to present evidence from which a reasonable jury could conclude that defendant knew or had reason to know that the dogs were a probable source of danger, such that he owed a duty to third persons to restrain them. Nor have they demonstrated that he voluntarily undertook to restrain the dogs.

SCOVT 2018: Selected Short Topical Summaries © 2018 Allan R. Keyes, Esq., all rights reserved

Appeals. Jurisdiction


John Moyers v. Sheun Lai Poon and Brenda Lee Poon, 2018 VT 27 (after Supreme Court affirms a decision trial court is without subject matter jurisdiction in the absence of an express remand.)

In re Investigation into Programmatic Adjustments to the Standard-Offer Program,2018 VT 52 (dismisses appeal for lack of jurisdiction.)

Caroline S. Lee v. Mark Ogilbee, 2018 VT 96 (reverses in part final divorce order. Approves “Brandeis” brief in appropriate cases to illuminate the social context for a decision, particularly where a decision will have widespread social, economic, or legal considerations)

Beaudoin v. Feldman, 2018 VT 83 (defendant  preserved his claim for appellate review by complying with V.R.C.P. 50(a) and (b), regardless of whether or not he also objected to the jury instruction on punitive damages.)

Alpine Haven Property Owners' Association, Inc. v. Harry Brewin and Lynette Brewin, 2018 VT 127 (mem.) (denies application for appellate costs as untimely: the time for requesting costs was not tolled by appellant’s motion to reargue)

Arbitration.  

Lesley Adams, William Adams and Adams Construction, VT, LLC v. Russell D. Barr and Barr & Associates, P.C. d/b/a Barr Law Group 2018 VT 12 (affirms denial of motion to vacate arbitration award, because participation in arbitration waived objection to validity of arbitration agreement.)


Attorneys

In re William E. Conner, Esq., 2018 VT 60(mem) (disbarment)


In re Robert Grundstein, 2018 VT 10 (affirms ruling that applicant failed to meet his burden of demonstrating the good moral character necessary for admission to the Vermont bar.)


In re Robert Hamm Moyer, Esq. (Office of Disciplinary Counsel) 2018 VT 29

In re Phyllis McCoy Jacien, Esq., 2018 VT 35 (suspension for failing to file tax return)

Nicola Weaver v. David Weaver, 2018 VT 56 (affirms contempt order re violation of child custody order; questions whether father’s wife is disqualified as attorney under VRPC 3.7 (lawyer cannot be witness) V.RPc 1.8 (lawyer cannot have proprietary interest in case.)


Building Permit.

Chris Khamnei v. Burlington Public Works Commission 2018 VT 19 (affirms superior court affirmance of municipal denial of plumbing permits, holding the statutes require a licensed plumber under the circumstances.)



Civil Procedure.  

Sulaiman J. Jadallah v. Town of Fairfax, Stacy Wells, Gabriel Handy and Sidon Pantry, LLC,
2018 VT 34 (affirms denial of motion to vacate settlement, and grant of summary judgment that claims were time-barred.)

Bonk v. Bonk, 2018 VT 15 (divided Court reverses order modifying parental rights because that issue was not expressly raised by motion and not “tried by express or implied consent of the parties.” V.R.C.P. 15(b).)

Federal National Mortgage Association v. Johnston , 2018 VT 51 (affirms voluntary dismissal by plaintiff, despite “two-dismissal “ rule, because the effect of the dismissal is not ripe until a third action is filed.)

Messier v. Bushman, 2018 VT 93 (reverses "judgment on the pleadings" for failure to serve because the court lacked sufficient evidence to determine whether service was completed)

Sidmond C. Williams & Barbara B. Williams, Co-Trustees v. Town of North Hero, 2018 VT 114 (reverses imposition of a monetary discovery sanction  for lying and obstruction  the disovery process where the sanctioned party was  in compliance with order compelling discovery.)

Common Benefits.


Cheryl J. Brown v. State of Vermont, 2018 VT 1 (affirms grant of summary judgment dismissing constitutional claims, denial of new trial and verdict that Plaintiff had not proven the accident caused any injuries.)

Constitutional Law.

State v. Rebekah S. VanBuren, 2018 VT 95 (divided court grants V.R.A.P.  21 petition for extraordinary relief and concludes revenge porn statute is constitutional on its face.)

State v. Dupuis, 2018 VT 86 (divided Court) (Chapter I, Article 11 of the Vermont Constitution does not permit warrantless search to enforce fish and game regulations, even though “no trespass” postings did not comport with Vermont’s hunting posting statute.)

State v. Rajda, 2018 VT 72 (Divided Court rules the admission of evidence of a refusal to submit to a blood test in the context of a DUI criminal proceeding does not violate the Fourth Amendment of the U.S. Constitution.)

State v. Ronald Dupuis, 2018 VT 86 (divided Court affirms suppression under Chapter I, Article 11 of the Vermont Constitution, of fruits of warrantless “open fields” search, despite argument that purpose of search was to enforce fish and game regulations and defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute.)

State v. Rebekah S. VanBuren, 2018 VT 95 (divided court grants V.R.A.P.  21 petition for extraordinary relief and concludes revenge porn statute is constitutional on its face.)

Consumer Protection

Messier v. Bushman, 2018 VT 93 (affirms dismissal of CPA claims by accident victim against other driver’s liability insurer because victim was not a “consumer” with respect to the insurance policy)

Criminal Law

In re Michael L. Carpenter, 2018 VT 91 (divided Court affirms dismissal of 2d PCR petition)

State v. Hugerth, 2018 VT 89 (mem.) (affirms denial of bail based on 6 year-old’s interview statement)

Kirk Wool v. Andrew Pallito, Commissioner / Bernard Carter v. Lisa Menard, Commissioner’ 2018 VT 63 (affirms summary judgment dismissing claim of ex post facto increase in sentence}

State v. Emily K. St. Peter, 2018 VT 65 (affirms animal cruelty conviction and denial of motion to suppress, because various statutory time limits for veterinary exams were intended to protect animials not defendants)

Mark Clark v. Lisa Menard, Commissioner, 2018 VT 68 (DOC programming decisions are unreviewable.)

Kirk Wool v. Andrew Pallito, Commissioner / Bernard Carter v. Lisa Menard, Commissioner, 2018 VT 63(affirms summary judgment that no ex post facto sentencing violation was proved)

State v. Mitchell Bowen, 2018 VT 87 (reverses conviction for sexual assault because plea colloquy did not comply with Rule 11.)

State v. Walker P. Edelman, 2018 VT 100 (reverses denial of motion to suppress breath test and remand sfor an evidentiary hearing; challenge to voluntariness is not precluded by Vermont’s implied consent law.)

State v. Stuart Lizotte, Jr. 2018 VT 92 (affirms denial of suppression motion claiming Fourth amendment violation  by AOL search of emails for suspected child pornography)

In re Kenneth Barber, Jr., In re Theodore C. Smith, Jr.,In re Danielle M. Rousseau, In re John Burke 2018 VT 78 (affirms cases under  Rule 11(f) where direct review was concluded at the time Bridger was decided.)

Environmental/land use Law

In re Laberge Shooting Range (Firing Range Neighborhood Group, LLC, Appellant), 2018 VT 84 (divided Court affirms E-court jurisdictional ruling that ACT 250 does apply to a family dairy farm that allows the community to target practice on its fields free of charge. ) 

Evidence.

Donald L. Sweet, Jr. and Preston L. Sweet v. Roy A. St. Pierre and Catherine St. Pierre d/b/a Woodlands Farms, 2018 VT 122 (affirms defendant’s judgment under the Prompt Pay Act and exclusion of medical evidence leading to  denial of counterclaim for assault; remands for award of attorney’s fees. The medical records were hearsay. V.R.E. 801 . To the extent that the medical records contained statements about the inception or cause of defendant’s alleged symptoms, such statements of inception or causation are not be admissible under V.R.E. 803(4) even if pertinent to diagnosis or treatment. Also affirms the exclusion of lay testimony that assault was cause of stroke).

Family Law.

Sandra L. Penland (Warren) v. John W. Warren, Jr., 2018 VT 70 (reverses denial of joint motion to modify final property division order; such relief is authorized in limited circumstances under Rule 60.)

Mar-Rae X. Terino v. Thomas F. Bleeks, 2018 VT 77 (reverses in part denial of request to include in divorce decree a mechanism to revisit parent-child contact when the child reached school age.)


Foreclosure sales.


HSBC Bank USA N.A. (Jeffrey C. Riley, Appellant) v. Scott A. McAllister and Eddy Mulder 2018 VT 9 (affirms denial of second highest bidder’s motion to confirm foreclosure sale after court invalidated high bid by bank and ordered new auction.)


People's United Bank, NA v.Alana Provencale, Inc., , 2018 VT 46 (REVERSES order compelling buyer at foreclosure sale to complete the purchase.)


Indemnification. Tort Claims Act.


Katherine Heffernan v. State, 2018 VT 47 (affirms dismissal of indemnification action claiming State is liable for employee’s conduct, because statute ran. Indemnification obligation does not apply to willful misconduct or assault and battery.)


Judgments. Issue Preclusion.

Daiello v. Town of Vernon 2018 VT 17 (reverses summary judgment for defendant based on finding in earlier case, holding issue preclusion does not apply to a finding that was untested on appellate review.)


Jurisdiction. Family.

Taranjit Kaur Maghu v. Prabhjot Singh / Prabhjot Singh v. Taranjit Kaur Maghu, 2018 VT 2 (affirms a final order and decree for the no-fault divorce and denial of motion to dismiss; trial court had jurisdiction to dissolve the party’s marriage, because nonimmigration visa status is not an impediment to establishing Vermont residency for purposes of filing a divorce action.)


Late Appeals.

In re Grievance of Edward Von Turkovich, 2018 VT 57 (affirms denial of motion to enlarge the time to file a notice of appeal; Board did not abuse its discretion in holding that attorney’s failure to notify the Board of his new address was not excusable neglect.)


In re Mahar, 2018 VT 20 (reverses E-Court order dismissing zoning appeal as untimely, and remands to decide whether the exception under V.R.A.P. 4(c) applies because party did not receive notice of judgment.)


In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant, 2018 VT 55 (affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.)

 In re Laberge Shooting Range (Firing Range Neighborhood Group, LLC, Appellant), 2018 VT 84 (Though erroneous advice from counsel alone does not usually satisfy the excusable neglect standard, environmental court was well within its discretion by allowing late appeal based also on advice given by the Coordinator and the ambiguous language printed on the reconsideration decision.)



Mandamus. 


Kirk Wool v. Lisa Menard, Commissioner, Vermont Department of Corrections, 2018 VT 23 (mandamus relief available to inmate challenging official breach of duty to provide low cost phone service.)

Robert A. Skiff, Jr. et al. v. South Burlington School District, 2018 VT 117 (on interlocutory appeal reverses denial of motion to dismiss  -- holding District not on petition required to hold a district wide vote on the  name of athletic teams)

Medical malpractice. Certificate of merit..

Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 (affirms dismissal of first action for failure to file certificate of merit and dismissal of second action because statute of limitations not tolled by 12 VSA § 558.)


Professional Regulation

In re Gregory J. Bombardier 2018 VT 11 (affirms OPR decision that engineer engaged in unprofessional conduct.)


Public Employment. 

Adam Hubacz v. The Village of Waterbury, 2018 VT 37 (addresses grounds for termination of a police officer pursuant to 24 V.S.A. § 1931)




Public Labor Relations

Board of School Directors of Washington Supervisory Union v. Cabot Teachers' Assn. and Twinfield Education Assn., 2018 VT 24


Negotiations Committee of Caledonia Central Supervisory Union v. Caledonia Central Education Assn., 2018 VT 18



Public Utility. Solar CPG

In re Petition of Stowe Cady Hill Solar, LLC2018 VT 3 (REVERSES dismissal of application for CPG for solar project; the application meets the completeness requirement as that requirement has been applied in the Commission’s prior decisions.)

In re Petition of LK Holdings, LLC, 2018 VT 109 (affirms dismissal of application for a certificate of public good because applicant failed to provide notice to adjoining landowners)

Punitive Damages.

Beaudoin v. Feldman, 2018 VT 83 (Not every claim of bad faith, conversion, or breach of fiduciary duty warrants a punitive-damages award. The  wrongful, intentional misconduct in this case -- a dispute between businessmen – fell short of the type of truly reprehensible or egregiously awful behavior necessary to support punitive damages)

Beaudoin v. Feldman, 2018 VT 83, ¶ 19 (divided Court affirms judgment on a verdict for conversion of proceeds of sale, breach of  fiduciary duty, and unjust enrichment, but reverses punitive damages.  Not every claim of bad faith, conversion, or breach of fiduciary duty warrants a punitive-damages award. The dispute must result in behavior that is truly reprehensible or egregiously awful. The evidence in this case did not rise to that level.  

Kneebinding, Inc., John Springer-Miller, Tina Springer-Miller and ACL Investments, LLC v. Richard Howell, 2018 VT 101 (affirms among others award of damages for defamation and  judgment on  claim of tortious interference with contract;  reverses the court’s termination of the permanent injunction and  refusal to impose the $7000 stipulated fine for Howell’s violations of the injunction) (ALSO  affirms denial of punitive damages for lack of incidence of  wealth:: “the court’s decision not to impose punitive damages in the absence of evidence about Howell’s finances is consistent with our law. . . . “We have stated that, in assessing punitive damages, the fact-finder must take into account the character and the standing of the party, the malice or wantonness of the party’s conduct, and the party’s financial status.” Faced with no evidence of the latter factor, the trial court reasonably declined to impose punitive damages”) Court does not discuss precedent that  proof of a defendant's actual means or wealth is not essential to the recovery of punitive damages. Shahi v. Madden, 2008 VT 25, 183 Vt. 320, 949 A.2d 1022; In re Estate of Peters, 171 Vt. 381, 765 A.2d 468 (2000).

Statute of Frauds

Stonewall of Woodstock Corp. and Accordion, LLC v. Stardust 11TS, LLC and Oliver Block, LLC, 2018 VT 79 (affirms summary judgment for alleged seller who did not sign purchase and sale agreement and  who did not authorize his attorney to sign)

Statute of Limitations.
Clark v. DiStefano, 2018 VT 82 (affirms summary judgment on statute of limitations grounds, holding under 12 V.S.A. § 464, that the UCC statute applies despite longer period in Title 12 for witnessed promissory notes.)

Torts.  


Gross v. Turner, 2018 VT 80 (neither landlord nor guest of tenant/dog-owner had "reason to know” that the dog posed an unreasonable risk and therefore owed no duty to passerby injured when pit bull escaped )

The phrase “reason to know” does not imply a duty to investigate: Restatement (Second) of Torts § 12, cmt. a. Landlords are not obligated to conduct background checks on tenants’ pets. A dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm.

Kuligoski v.Rapoza, 2018 VT 14 (divided Court affirms summary judgment dismissing claim that out-of-state grandparents were liable for grandson’s assault of worker who was repairing furnace at their rental property, holding as a matter of law that there was no control and therefore no employer-employee relationship between grandparents and father that warranted imposing liability on grandparents for father’s negligent supervision of grandson.)

Keith & Jackie Lorman, Charles & Melissa Gallagher, and Daniel & Alicia Daly v. City of Rutland 2018 VT 64(affirms summary judgment dismissing claims, including takings claims against municipality arising from sewage backups that were “intermittent, limited, and transient.”)

Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores , 2018 VT 80 (affirms summary judgment that neither landlord nor social guest of tenant/dog owner owed a duty to passerby injured when dog escaped.)

Willis S. Sheldon, Individually and as Administrator of the Estate of Dezirae Sheldon v. Nicholas Ruggiero

2018 VT 125 (affirms summary judgment that defendant was not liable for death of child who was murdered by stepfather, holding defendant acted reasonably and prudently in his role as a DCF reviewer, and never undertook DCF’s obligation to investigate all potential sources of the child’s injuries.)

Where a plaintiff seeks to use a safety statute as the standard of care under the prima facie negligence rule, there must be an existing duty recognized by the common law. To be an “undertaking” the defendant must have undertaken to do the specific task he or she is accused of performing negligently.There was insufficient  evidence of  a specific undertaking by defendant to broadly investigate the cause of the child’s previous injuries.)

Trusts and Estates
Patricia Hayes v. Allison Hayes, Brian Hayes and LPL Financial, LLC, 2018 VT 102 (affirms IRA beneficiary designation)

Estate of Emil Kuhling by Richard W. Kuhling v. Taylor Glaze,2018 VT 75 (Reverses  award to the Estate and remands to the trial court to enter judgment,  concluding  that there was no breach of any fiduciary duty by decedent’s niece regarding the sale of a house, because settlor consented to self-dealing)

Bonnie L. Avery v. Estate of Allen D. Avery, 2018 VT 59 (affirms ruling that children’s share of the personalty should contribute to estate’s administrative expenses only if spouse’s share of the personalty is insufficient)

Estate of Emil Kuhling by Richard W. Kuhling v. Taylor Glaze,2018 VT 75 (Reverses  award to the Estate and remands to the trial court to enter judgment,  concluding  that there was no breach of any fiduciary duty by decedent’s niece regarding the sale of a house, because settlor consented to self-dealing)

Patricia Hayes v. Allison Hayes, Brian Hayes and LPL Financial, LLC, 2018 VT 102 (affirms IRA beneficiary designation)

Unemployment. 

Lionel Beasley v. Department of Labor (Champlain College, Inc., Employer), 2018 VT 104 (affirms denial of unemployment benefits because under § 1343(c)(1), benefits are unavailable to adjunct professors “during the period between two successive academic years or terms . . . if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.”)

Jason Lillie v. Department of Labor, 2018 VT 66(worker not eligible for unemployment because he did not earn wages while receiving workers compensation l disability )




Workers Compensation

Catherine Lyons v. Chittenden Central Supervisory Union, 2018 VT 26 (divided Court holds student teacher qualifies for Workers compensation benefits.)


Joanne Perrault v. Chittenden County Transportation Authority,2018 VT 58 (affirms summary judgment denying Workers compensation benefits , because claimant did not receive wages)

Ira Martel v. Connor Contracting, Inc., Jason Clark, and Stephen Connor, 2018 VT 107(splintered Court disagrees on whether to apply substantial-certainty standard or  stricter specific-intent test, affirms summary judgment dismissing on exclusivity grounds tort claims against employer and against  fellow employees acting within scope of a nondelegable corporate duty; disabling safety equipment does not support inference of specific intent to injure). 

SCOVT affirms grant of summary judgment dismissing constitutional claims, denial of new trial and verdict that Plaintiff had not proven the accident caused any injuries. No common benefit interest in criminal prosecution of third party.

Cheryl J. Brown v. State of Vermont, 2018 VT 1 [filed1/12/2018]

EATON, J. Cheryl Brown appeals from a jury verdict finding the State responsible for a motor vehicle accident, but also finding Brown had not proven any resulting injuries and thus was not entitled to any damages. Brown alleges several errors in pre-trial and trial rulings, as well as in the failure to grant her a new trial. We affirm

Before trial, the court granted the State’s motion for partial summary judgment, dismissing Brown’s constitutional claims. The Court dismissed the due process and equal protection claims under the United States Constitution on the basis that Brown had only sued the State, and not Denis personally, and that the State was not a “person” for claims arising under 42 U.S.C. § 1983.

Because Brown’s suit was against the State, and because, under 42 U.S.C. § 1983, a state is not a “person,” as is required to maintain the claim, summary judgment for the State was proper on her equal protection and due process claims.

The court further ruled that Brown lacked standing to assert any claim based on the State’s failure to prosecute Denis. The court also dismissed the Common Benefits Clause claim because Brown lacked any cognizable interest in the prosecution or discipline of Denis and because her ability to file suit against the State as a result of the accident showed her due process rights were not impeded.

The Common Benefits Clause of the Vermont Constitution and the federal Equal Protection Clause differ markedly in language, historical origin, purpose, and development. The purpose of the Common Benefits Clause is to ensure that protections conferred by the State are for “the common benefit of the community” and not just a part of the community. Any potential constitutional tort claim based on a violation of Article 7.3 “must show the denial of a common benefit” due to “disparate and arbitrary treatment when compared to others similarly situated.” Id.

There is no deprivation of a common benefit because Brown has no legally cognizable interest in the prosecution of Denis, or any criminal or disciplinary consequences that may ensue. Summary judgment for the State was proper on Brown’s Common Benefits claim.

SCOVT reverses denial of joint motion to modify final property division order; such relief is authorized in limited circumstances under Rule 60

Sandra L. Penland (Warren) v. John W. Warren, Jr., 2018 VT 70 

REIBER, C.J. Husband appeals the trial court’s denial of husband and wife’s joint motion to modify their final divorce order. The issue in this case is whether the trial court has jurisdiction under Vermont Rule of Civil Procedure 60(b)(6) to modify a property-division order based on the agreement of the parties after the divorce order has become absolute. We hold the court does have jurisdiction, and accordingly we reverse and remand.

The court declined to exercise its discretion because  it found, as a matter of law, that it lacked jurisdiction to modify the property division. Whether the court has authority to exercise its discretion is a legal issue that we review de novo.

Under Rule 60(b), “the court may relieve a party . . . from a final judgment, order, or proceeding” for several enumerated reasons, such as mistake, V.R.C.P. 60(b)(1), and fraud, V.R.C.P. 60(b)(3). Rule 60(b)(6) authorizes relief for “any other reason justifying relief from the operation of the judgment.” The subsection is available only where the other criteria under Rule 60(b) do not apply.

Rule 60(b)(6) is available and appropriately used to provide relief from a final property-division order where “extraordinary circumstances” justify relief “to prevent hardship or injustice.” Wilson v. Wilson, 2011 VT 133, ¶ 5, 191 Vt. 560, 38 A.3d 50 (mem.) (quotations omitted). This opportunity for relief applies to final property divisions in divorce orders as it does to other final orders and judgments. See id. ¶¶ 5-6 (affirming that court can modify divorce order under Rule 60(b)(6) only if there are “unusual circumstances” that “would warrant relief from a judgment generally” (quotations omitted))

In considering whether such circumstances exist here, the court should note that the parties have agreed to a stipulated modification. This is not a situation where one or both parties seek to continue litigation past its end. See Richwagen, 153 Vt. at 4, 568 A.2d at 421 (stating “the grounds for relief authorized under Rule 60(b)(6) are broad” but limited by need for “certainty and finality of judgments so that litigation can reach an end”). Rather, this situation is an attempt to respond in a mutually beneficial way to emerging circumstances. Although the court has discretion to decline to accept a stipulated modification, it is more likely that modification under Rule 60(b)(6) is appropriate where the parties have stipulated to an agreement.

SCOVT affirms denial of motion to vacate arbitration award, because participation in arbitration waived objection to validity of arbitration agreement.

Adams v. Barr, 2018 VT 12 [filed February 2, 2018]

ROBINSON, J. The critical question in this case is whether a party who participates extensively and without objection in an arbitration proceeding for nearly seven months prior to the actual arbitration hearing waives an objection to the validity of the arbitration agreement. Lesley Adams, William Adams, and Adams Construction VT, LLC (collectively Adams Construction) appeal the trial court’s denial of their application to vacate an arbitration award in favor of Russell Barr and the Barr Law Group (collectively Barr Law Group) and against Adams Construction. Because we conclude that Adams Construction waived its challenge to the validity of the arbitration agreement, we affirm

SCOVT dismisses appeal seeking advisory opinion.

In re Investigation into Programmatic Adjustments to the Standard-Offer Program,2018 VT 52 [filed 5/11/2018

REIBER, C.J. Appellant Renewable Energy Vermont (REV) asks this Court to reverse and remand an order of the Vermont Public Utility Commission1 that altered technology allocations in the standard-offer program for renewable energy projects. We conclude that REV seeks an advisory opinion and therefore dismiss the appeal for lack of jurisdiction.

“It is the tradition of constitutional common law that the establishment of legal doctrine derives from the decision of actual disputes, not from the giving of solicited legal advice in anticipation of issues.” Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977). In other words, “ ‘courts are not instituted to render advisory opinions.’ ” Baker v. Town of Goshen, 169 Vt. 145, 151, 730 A.2d 592, 596 (1999) (quoting In 8 re Constitutionality of House Bill 88, 115 Vt. at 529, 64 A.2d at 172). The issues raised by REV are premature, and we therefore lack jurisdiction to consider them. See id. at 152, 730 A.2d at 597 (dismissing appeal that sought impermissible advisory opinion).

After Supreme Court affirms a decision trial court is without subject matter jurisdiction in the absence of an express remand.

John Moyers v. Sheun Lai Poon and Brenda Lee Poon, 2018 VT 27 [filed 3/9/2018]

EATON, J. Following a decision from a three-justice panel of this Court issued on June 26, 2017, * involving these parties and this litigation and affirming a final judgment order, the civil division attempted to conduct further hearings as if the matter had been remanded. The Poons challenged continuation of the litigation by the trial court, asserting that, in the absence of an express remand from the Supreme Court in the June 26th decision, the trial court lacked subject matter jurisdiction to conduct further hearings. The trial court denied the motion and the Poons were granted permission by the Supreme Court to appeal the denial on an interlocutory basis. We reverse.

In the June 26th decision, this court affirmed the trial court’s decision in all respects except for the grant of injunctive relief, which was stricken. In all other respects, the judgment is affirmed.”). In the absence of a finding that the Poons had trespassed, we held there was no entitlement to an injunction. Id. at *5-6. The court did not remand the case to the trial court for determination of trespass. Id.

We have long recognized that unless a remand is ordered when the final judgment or decree is entered in the Supreme Court, the lower court is without jurisdiction to consider the case further. Turner v. Bragg, 114 Vt. 334, 336, 44 A.2d 548, 549 (1945). If Moyers felt a remand was necessary to consider the trespass claim, his remedy was to file for reargument seeking a remand to the trial court. He did not do so. To proceed as he did, by filing a motion in the trial court where there had been no remand, ignores the finality of Supreme Court decisions “It is the rule that a mandate or an order of remand is necessary to reinvest the lower court with jurisdiction to proceed with the case.” Sanders v. Loyd, 364 S.W.2d 369, 371 (Tenn. Ct. App. 1960). ¶ 10. trial court is without jurisdiction to consider the instant case further and the motion to dismiss for lack of subject matter jurisdiction should have been granted. The judgment rendered June 26th by this Court, which did not include a remand, was final.

SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.

In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant) 2018 VT 55 [filed 5/25/2018]

REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal. We affirm.

The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission does not have open-ended authority to change a permit or grant an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

An extension of time must be requested within thirty days of the initial period of appeal, and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.

SCOVT affirms denial of motion to enlarge the time to file a notice of appeal; Board did not abuse its discretion in holding that attorney’s failure to notify the Board of his new address was not excusable neglect.

In re Grievance of Edward Von Turkovich, 2018 VT 57 [filed 5/25/2018]

REIBER, C.J. Grievant Edward von Turkovich appeals the decision of the Vermont Labor Relations Board denying his motion to enlarge the time for him to file a notice of appeal. We affirm.

After filing a grievance with the Board on behalf of employee and opposing the employer’s motion to dismiss, employee’s attorney moved his office, notifying the Post Office of his new address —but not the Board, required by Board rules. The Board sent its decision dismissing the grievance to the attorney, return-receipt-requested. The Post Office sent it back to the Board with the attorney’s new address. By the time the attorney got the decision, more than 30 days had passed since the dismissal.

Because the attorney failed to update his mailing address with the Board in a timely manner, grievant did not receive notice of the Board’s order within the thirty-day appeals window. Applying the Pioneer test articulated by the United States Supreme Court, we agree with the Board that the factors of delay, prejudice, and good faith weigh in favor of grievant. But our primary focus must be the reason for the delay. The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect.

SCOVT affirms summary judgment dismissing claims, including takings claims against municipality arising from sewage backups that were “intermittent, limited, and transient.”

Lorman v. City of Rutland, 2018 VT 64 [filed 6/29/2018]

REIBER, C.J. Plaintiffs sought relief from the City of Rutland after suffering sewage backups in their homes. The trial court granted summary judgment to the City, concluding that plaintiffs failed to adequately support their negligence, nuisance, trespass, and constitutional takings claims. Plaintiffs appeal, arguing that they produced sufficient evidence to survive summary judgment. We affirm the court’s decision

Plaintiffs suggest that a taking has occurred, citing Winn v. Vill. of Rutland, 52 Vt. 481, 494-95  (1880) (stating that village authorities had no “right to make the lands of the plaintiff a place of deposit for the sewage of the village, creating there a cesspool and nuisance, and endangering the lives of the plaintiff and his family, without first making compensation therefor,” and “[s]uch use of the plaintiff’s lands amounts to a taking of his land within the purview of the constitutional requirement that compensation shall be made”)

The City is not immune from takings claims. For a property loss to be compensable as a taking, the government must “intend[] to invade a protected property interest or the asserted invasion [must be] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Ondovchik Family 21 Ltd. P’ship, 2010 VT 35, ¶ 16

Although temporary, repeated incursions can sometimes rise to the level of a taking, the incursions must “amount to the taking of an easement. When the intrusion is limited and transient in nature and occurs for legitimate governmental reasons, it does not amount to a taking. Ondovchik, 2010 VT 35, ¶ 18 To the extent that we suggested otherwise in Winn v. Vill. of Rutland, 52 Vt. 481, 491-93 (1880), that suggestion is no longer good law

The undisputed facts here show that the sewage backups on plaintiffs’ property have been intermittent, limited, and transient. The Gallaghers have had one backup since 2007 and the Lormans have had two. The Dalys have had five backups between 1983 and 2014 with the closest backups occurring four years apart. While no backup is insignificant, the backups occurred intermittently over a long period of time, and we conclude that this does not suffice to show a taking under the law. Based on the undisputed facts, the City was entitled to summary judgment on this claim.

How cited

Divided Court rules the admission of evidence of a refusal to submit to a blood test in the context of a DUI criminal proceeding does not violate the Fourth Amendment of the U.S. Constitution.

State v. Rajda, 2018 VT 72 [filed July 20, 2018]

REIBER, C.J. In the above consolidated cases, the State appeals the trial court’s interlocutory orders granting defendants’ motions in limine seeking to suppress evidence of their refusal to submit to blood tests to determine if they were operating a motor vehicle under the influence of drugs (DUI). The trial court granted the motions in limine based on Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016). The State challenges the trial court’s interpretation of Birchfield, arguing that the U.S. Supreme Court indicated therein that evidence of a refusal to take a warrantless blood test in the context of a DUI arrest and prosecution could be admitted at trial as evidence of guilt. Defendants respond that the constitutional issue has been effectively mooted by a post-Birchfield amendment to Vermont’s implied consent law and that, in any event, the trial court correctly construed Birchfield and other related federal law to prohibit the admission of evidence of a refusal to consent to a warrantless blood test.

We conclude that the amendment to the implied consent law did not moot the constitutional issue before us. We further conclude that Fourth Amendment does not prohibit admitting in a criminal DUI proceeding evidence of a defendant’s refusal to submit to a warrantless blood test requested pursuant to Vermont’s implied consent law. Accordingly, we reverse the trial court’s decisions granting defendants’ motions in limine and remand the cases for further proceedings consistent with this opinion.


ROBINSON J., dissenting. I would dismiss these appeals as moot.. I am authorized to state that Judge Davenport joins this dissent.

Divided Court holds Grandparents not liable as a matter of law for grandson’s assault of worker at their property because there was no control and therefore no employer-employee relationship between grandparents and father that warranted imposing liability on grandparents for father’s negligent supervision of grandson.

Kuligoski v. Rapoza, 2018 VT 14 [2/16/2018]

SKOGLUND, J. This is the second case arising from the near-fatal assault of Michael Kuligoski by Evan Rapoza, who had previously been diagnosed with schizophreniform disorder. In this case, plaintiffs—members of the Kuligoski family—brought suit against Evan’s grandparents, claiming that they were liable for Evan’s assault of Mr. Kuligoski while Mr. Kuligoski was repairing the furnace at their rental property. Plaintiffs claim, among other things, that the grandparents are vicariously liable for Evan’s father’s negligent hiring or supervision of Evan, who was there to help his father repaint an apartment. On appeal, plaintiffs seek reversal of the trial court’s order granting grandparents summary judgment. Plaintiffs argue that the court erred by determining that grandparents could not be held vicariously liable for the attack because it was not reasonably foreseeable. We affirm, but on a different basis than that relied upon by the trial court.

As a preliminary matter, we reject grandparents’ argument that plaintiffs’ failure to appeal from the trial court’s order granting summary judgment to Evan’s parents estops plaintiffs from pursing their claim imputing negligence to the grandparents. There was no preclusive effect arising from the court’s summary judgment order in favor of the parents, because it was not a final judgment and the final judgment was timely appealed.

To prevail on its claim against grandparents, plaintiffs must demonstrate not only negligence on the part of father, but also an employer-employee relationship between grandfather and father that warrants imposing liability on grandparents for father’s negligence. In tort cases, we have relied upon the common law “right to control” test to determine whether a worker is an employee or an independent contractor. See Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126, 14 A.3d 968; RLI Ins. v. Agency of Transp., 171 Vt. 553, 554, 762 A.2d 475, 477 (2000) (mem.); LeClair v. LeClair, 2017 VT 34, ¶ 38, ___ Vt. ___, 169 A.3d 743 (stating that “essential element” in determining employer-employee relationship “is the right to control” (quotation omitted)); see also Restatement (Third) of Agency § 7.07(3)(a) (stating that, for purposes of that section, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).

The undisputed facts show that father managed the out-of-state grandparents’ building and did renovation work that he recommended without any control, or expectation of control, by grandparents over the means or methods of his work. Because this is not a close case with respect to the primary right-to-control test, we need not look at the supplementary Restatement factors.


REIBER, C.J., dissenting. Grandparents may not have elected to exercise their right to control the means and methods of their son’s work as property manager of their apartment building, but that is not the test. The test is whether they had a right to control his work. The nature of the relationship strongly suggests that they did. At minimum, particularly given the inferences inherent in the relationship suggesting a right to control, it is for the jury, not this Court, to make that determination. A reasonable jury could reasonably infer from the facts that grandparents had the right to control the means and methods of father’s work at their apartment building, so as to make them potentially liable for father’s conduct in hiring and/or supervising grandson on the property. Further, I would adopt the American Law Institute’s view that foreseeability is primarily a consideration in determining whether a duty has been breached or whether the defendant’s conduct proximately caused the harm—both of which are ordinarily factual determinations within the purview of the jury. See Restatement (Third) of Torts: Physical & Emotional Harm § 7 cmt. j (2010) (stating that proper role for foreseeability is not in determining whether duty exists, which is purely legal question regarding whether to impose liability in category of cases, but rather in making factual determination as to whether duty was breached). Because I disagree with the majority’s determination as a matter of law that no employer-employee relationship existed between grandparents and father, and because I would also hold that the trial court erred by not allowing the jury to determine the foreseeability of the nature of the harm resulting from father bringing Evan to the work site, I respectfully dissent.

SCOVT reverses summary judgment for defendant based on finding in earlier case, holding issue preclusion does not apply to a finding that was untested on appellate review.)

Daiello v. Town of Vernon, 2018 VT 17  [2/16/2018]

EATON, J. Plaintiff landowner, who built a residence on leased property owned by defendant, Town of Vernon, appeals the superior court’s order granting the Town summary judgment with respect to his claim that the Town breached a covenant of quiet enjoyment implied in the 1838 lease by not providing him access to the property. We reverse and remand for further proceedings.

The trial court granted the Town’s summary judgment motion, ruling that as a matter of law, the Town did not breach the covenant because the finding in Merritt v. Daiello that plaintiff had access to his property from the west precluded plaintiff from relitigating that fact.

In Merritt v. Daiello, plaintiff challenged on appeal the trial court’s finding of access to his property from the west, but this Court declined to review that finding because it upheld on different grounds the trial court’s conclusion that there was no easement by necessity. Commentators and courts alike have held that issue preclusion should be denied with respect to any finding that was untested on appellate review. See Restatement (Second) of Judgments § 27 cmt. o ("If the appellate court upholds one of the[] determinations [by the lower court] as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive [only] as to the first determination.")

Accordingly, plaintiff is not precluded in this proceeding from relitigating whether he has access to this property from the west.

The second preclusion question raised herein is whether the parties are precluded from relitigating in this case whether Stebbins Road was properly laid out by the Town The issue of whether the Town properly laid out Stebbins Road was raised in Merritt v. Daiello, determined by the superior court in the Merritts’ favor, and upheld on appeal. The Town is correct that because it was not a party in Merritt v. Daiello, it is not precluded from arguing that Stebbins Road was properly laid out as a public road.

On remand, if the court rules the Town properly laid out Stebbins Road and thus did not interfere with plaintiff’s access over that road this would result in two inconsistent judgments. By not joining the Town in their earlier action seeking to prevent plaintiff from accessing his property through their property based on a claim that the Town had failed to properly lay out the public road crossing their property, the Merritts ran the risk that issues resolved in that action would be subject to religitation in any later action involving the Town and themselves as indispensable parties.

SCOVT affirms ruling that children’s share of the personalty should contribute to estate’s administrative expenses only if spouse’s share of the personalty is insufficient.

Bonnie L. Avery v. Estate of Allen D. Avery, 2018 VT 59  [6/15/2018]

REIBER, C.J. Allen Avery (testator) died testate in 2008 and left property to his spouse and children. Spouse, children, and the executor of the estate have disputed how the estate’s administrative expenses should be allocated. The civil division determined that expenses should be paid out of spouse’s share of the personal estate until paid in full or until they exhaust her share, and that children’s share of the personalty should contribute to administrative expenses only if spouse’s share of the personalty is insufficient. Spouse appeals. We affirm.

Because we have found no Vermont case law addressing this issue, we look to the Restatement (Third) of Property (Restatement) and other states' case law for an expression of the common-law rule of abatement. Restatement (Third) of Prop.: Wills & Donative Transfers § 1.1 (1999) . According to the Restatement, "[u]nless otherwise provided by will or applicable statute, shares of heirs and devisees abate in the following order to pay claims: (1) intestate shares; (2) residuary devises; (3) general devises; (4) specific devises." Restatement, supra, § 1.1 cmt. f.

This order of abatement is based on § 3-902 of the Uniform Probate Code (UPC), "which codifies the usual rules of abatement followed generally." Restatement, supra, § 1.1 reporter's note 3. The UPC states: "[S]hares of distributees abate . . . in the following order: (i) property not disposed of by will; (ii) residuary devises; (iii) general devises; (iv) specific devises. . . ." U.L.A. Uniform Probate Code § 3-902(a) (2010).

 No one disputes that here the devise to children was a specific devise, and spouse's devises were either general or residuary.

The will clearly indicates that administrative expenses be paid out of the personal estate, but it does not otherwise indicate how to allocate expenses within this class of assets. Absent indication of testator's intent, we presume intent from the common law.

SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.

In re Mathez Act 250 LU Permit, 2018 VT 55 [5/25/2018]

 REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal.  Tthe court granted summary judgment in favor of applicants and ordered the District Commission to vacate its decision to issue a second notice of the permit. . We affirm.

The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission  does no have open-ended authority to change a permit or an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

 An extension of time must be requested within thirty days of the initial period of appeal,  and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.