Monday, November 18, 2019

SCOVT holds that the denial of summary judgment based on the sufficiency of the evidence is not subject to appellate review after a trial on the merits.



The Lofts Essex, LLC, v. Strategis Floor Décor Inc., 2019 VT 82 [filed 11/8/2019]


CARROLL, J. Plaintiffs appeal the trial court’s pretrial denial of summary judgment and the court’s final decision ruling in favor of defendant. We conclude that the trial court’s pretrial denial of summary judgment is not reviewable and affirm the final decision granting judgment to defendant.

“[A] party generally cannot appeal from the pretrial denial of a motion for summary judgment.” Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 69, ¶ 14, 199 Vt. 289, 123 A.3d 393 (emphasis added). “Once trial begins, summary judgment motions effectively become moot, and the trial court’s judgment on the verdict after a full trial on the merits supersedes the earlier summary judgment proceedings.” Id. (alterations and quotation omitted).

As is often the case, however, there is an exception to this general rule. As the Second Circuit has explained: A critical distinction exists between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide. Where a motion for summary judgment based on an issue of law is denied, appellate review of the motion is proper even if the case proceeds to trial. Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004).

We conclude that the trial court’s denial of summary judgment here is not reviewable because it was decided on sufficiency-of-the-evidence—not legal—grounds. The trial court denied the plaintiffs’ motion for summary judgment because, although the plaintiffs had produced “compelling evidence that the [spots] must be due to a manufacturing issue,” defendant “ha[d] come forward with sufficient evidence to create a genuine dispute as [their] cause.”

Because the trial court’s denial of summary judgment was based on the sufficiency of the evidence, it is not subject to appellate review after a trial on the merits.


SCOVT NOTE.

In Lofts Essex the Court announces that a previously recognized rule about preservation of error has an exception that does not apply to the facts of the case.

This begs the question as to the scope of the exception and whether, as a practical matter, there is any  case to which the general rule requiring renewal at trial of summary judgment issues does not apply.

This case, like other Vermont decisions rejecting the applicability of  proposed rules that the Court has not adopted,  opens new fields for advocacy. Compare Mead v. W. Slate, Inc., 2004 VT 11, ¶ 20, 176 Vt. 274, 284, 848 A.2d 257, 264 (2004) (Assuming without deciding that Vermont follows “substantial certainty” rule in other States (as opposed to specific intent to injure as necessary basis to abrogate workers compensation immunity), holding that the evidence was insufficient to support a finding that defendants knew to a substantial certainty their actions would result in injury to plaintiff.); Vincent v. DeVries, 2013 VT 34, ¶ 25, 193 Vt. 574, 588–89, 72 A.3d 886, 897 (2013) (Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims, holding that the subject of defendant's representation of plaintiff was not of such a personal and emotional nature that it would support recovery of emotional distress damages).

On one hand the opinion can be read to suggest the general rule is a narrow and  applies only to summary judgment denials based on the sufficiency of evidence.  On the other hand, to the extent  the exception is grounded  in federal law, the opinion can be read  to say the exception is a narrow one, for "pure" questions of law only. [See update below]

The seminal  Second Circuit case denying post-trial review of summary judgment denials  is   Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130- 31 (2d Cir.1999). (Denial of a summary judgment motion is not ordinarily reviewable on appeal from a final judgment entered after trial on the merits). According to this case, the appropriate procedure for appeal of a denial of a motion for summary adjudication is that (1) the party may petition for the right to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b); or (2) if the case proceeds to trial, the party may make and renew motions pursuant to Rule 50 for judgment as a matter of law and appeal the district court's denial of that motion. Massey-Ferguson Inc., 170 F.3d at 132.

In a later case, the Second Circuit held that the rule that the denial of summary judgment may not be appealed after full trial on the merits, “does not apply where the district court's error was purely one of law.” Schaefer v. State Insurance Fund, 207 F.3d 139 (2d Cir. 2000).

In 2011, The U.S. Supreme Court explained that once a case proceeds to trial the “full record developed in court supersedes the record existing at the time of the summary-judgment motion” and appeared to adopt a blanket rule precluding the Schaefer pure-error-of-law exception.  Ortiz v. Jordan, 562 U.S. 180, 183–84, (2011)  (“May a party, as the Sixth Circuit believed, appeal an order denying summary judgment after a full trial on the merits? Our answer is no.”). 

In the wake of Ortiz, some federal appellate courts have cited Ortiz as unqualifiedly answering that a party may never, after a full trial on the merits, appeal an order denying summary judgment,  Other federal appellate courts, including the Second Circuit  distinguish between denials based on genuine issues of material fact and denials based on legal conclusions. Joan Steinman, The Puzzling Appeal of Summary Judgment Denials: When Are Such Denials Reviewable?, 2014 Mich. St. L. Rev. 895, 918 (2014) ( critiquing  Ortiz and arguing that appellate review should be allowed of summary-judgment denials after trial, when they rest on a question of law).

The Second Circuit, in dictum at least, recognizes that the “the pure error of law” exception of  Schaefer  continues as an  exception to  the Ortiz general rule  that an order denying summary judgment is not reviewable after a full trial on the merits. Stampf v. Long Island R.R., 761 F.3d 192, 201 n. 2 (2d Cir.2014).   The Stampf court noted references in Ortiz distinguishing  cases that “present purely legal issues capable of resolution with reference only to undisputed facts.” Id.

This resonates with Vermont’s definition, in another context, of a “pure” question of law, as one that “does not depend upon factual distinctions and does not require review of the record.”  In re Estate of Johnson, 158 Vt. 557, 559 (1992)

Thus if the Second Circuit is the model for Vermont practice, the exception to the preservation-at-trial requirement  is a limited one based on the rarely occurring “pure" question of law.

UPDATE.  Since this scovtnote was written, the U.S Supreme Court resolved the conflict in the circuits consistent with Second Circuit  precedent and  held that a post-trial motion under Rule 50 is not required to preserve for appellate review a "purely legal issue" resolved at summary judgment.  Dupree v. Younger (05/25/2023) (citing Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004))


Thursday, October 17, 2019

Divided Court affirms Rule 12(b)(6) dismissal of wrongful termination complaint alleging retaliation for whistleblowing.

Dawn Boynton v. ClearChoice MD, MSO, LLC and ClearChoiceMD, PLLC, 2019 VT 49 [filed August 2, 2019]


CARROLL, J. Plaintiff appeals the trial court’s dismissal of her wrongful termination complaint against her former employer. In her amended complaint, plaintiff alleges that she was terminated from her employment as a medical assistant at defendants’ medical office in Rutland in September 2017 in violation of the covenant of good faith and fair dealing and contrary to whistleblower protections. We affirm.

Because plaintiff was an at-will employee and she has admitted on appeal that the handbook does not modify her status as an at-will employee, her argument that defendants violated the covenant of good faith and fair dealing by terminating her for a pretextual reason fails.

An at-will employee may not be terminated for reasons that violate “a clear and compelling public policy.” Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) An employee seeking to invoke the public-policy exception to at-will employment must demonstrate that her employer’s conduct was “ ‘cruel or shocking to the average [person’s] conception of justice.’ Whether an activity violates public policy is a question of law. Madden v. Omega Optical, Inc., 165 Vt. 306, 314 n.3, 683 A.2d 386, 391 n.3 (1996). Here, the allegations in the complaint do not demonstrate that defendants’ conduct was “cruel or shocking to the average [person’s] conception of justice.” Payne, 147 Vt. at 493, 520 A.2d at 589 (quotation omitted).

Plaintiff cannot state a claim grounded in the facts and allegations of the complaint that defendants violated the handbook’s whistleblower provision, which protects an employee who, in good faith, reports threats to patient safety. The employer’s’ alleged comment cannot reasonably be viewed as having endangered anyone’s health or safety given the timing of the statement. Plaintiff did not f make such an allegation in her complaint.

We conclude that plaintiff has not stated a claim for a violation of a clear and compelling public policy. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 82, 807 A.2d 390, 397 (2002) (affirming summary judgment in favor of employer where plaintiff failed to show that termination was “so contrary to society’s concern for providing equity and justice that there is a clear and compelling public policy against it”). Nor has she stated a claim under the handbook’s whistleblower policy. The trial court therefore properly dismissed this claim as well. Affirmed.

ROBINSON, J., dissenting. I conclude that the allegations in plaintiff’s complaint, and the fair inferences from those allegations, are sufficient to survive a motion to dismiss with respect to plaintiff’s claims that defendants breached the covenant of good faith and fair dealing and wrongfully terminated her in violation of public policy. First, I believe the framework applied by the majority—based on its understanding that plaintiff has not argued that her at-will status has been modified to any degree—overlooks that plaintiff’s claim based on the implied covenant of good faith and fair dealing arises from defendants’ alleged violation of a specific no-retaliation provision in the handbook. Second, given the standards applicable at this stage of litigation, I believe the complaint alleges sufficient facts to support plaintiff’s claims based on retaliatory discharge under a theory based on public policy. Because I conclude that the allegations, considered in their proper light, could support the claims that plaintiff has made, I would deny the motion to dismiss and remand for further proceedings. Accordingly, I respectfully dissent.

PEARSON, Supr. J. (Ret.), Specially Assigned, dissenting. I agree with almost all of what Justice Robinson has written as to why the dismissal of the amended complaint, as a matter of law under Vermont Rule of Civil Procedure 12(b)(6), was premature at this early stage of the litigation. I write separately to emphasize the narrow claims actually made by plaintiff, and also because I believe that (a) it is unnecessary to analyze her public-policy assertions to determine whether those allegations alone state a cause of action, and (b) it is unnecessary for plaintiff to ultimately prove that the physician assistant’s remark presented any actual risk of harm (whether present or future) to defendants’ patient

Divided Court on interlocutory appeal reverses denial of summary judgment and holds Recreational Use Statute immunized defendants from liability for drowning of child on defendants’ “open and undeveloped” land adjacent to a day care.)

Katerina Nolan, as Administrator of the Estate of Parker J. Berry v. Stephen J. Fishman and Susan B. Fishman, 2019 VT 63 [filed September 6, 2019]

SKOGLUND, J. The question presented is whether Vermont’s Recreational Use Statute, 12 V.S.A. §§ 5791-5795, which provides limitations on landowner liability, is applicable to the undisputed tragic facts of the case. We find that the Recreational Use Statute applies and that defendants’ motion for summary judgment should have been granted. Therefore, we reverse the holding of the trial court and remand.

Defendants sought and were granted an interlocutory appeal. They primarily argue that the trial court erred by holding that the Recreational Use Statute did not immunize defendants from liability

Under this law owners who make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.

Most importantly for our analysis, the statute defines “land” as, among other things, “open and undeveloped land, including paths and trails.”. § 5792(2)(A)(i).

The trial court first court concluded that Parker died in the backyard of the daycare, in a portion of defendants’ property that was “seamlessly integrated” with the daycare’s property, and thus the relevant portion of defendants’ land “was not the ‘open and undeveloped land’ that the Legislature had in mind in encouraging landowners to make their land open to the public for general recreation.” As such, the court determined that defendants were not entitled to the protection of Vermont’s Recreational Use Statute and granted in part the estate’s motion for partial summary judgment and denied defendants’ motion for summary judgment

The trial court concluded that the land “was at least partially ‘developed’ for the Daycare Business” due to various “improvements” on the land—namely a sandbox, mowed pathways, and a brook bridge. 4 We disagree with this determination based on the plain language of Chapter 12. The Legislature took care to express that “land” may include paths, trails, water courses, bridges, and walkways. Id. § 5792(2)(A)(i)-(iv). Furthermore, the Legislature expressly stated that “the presence of one or more of the following on land does not by itself preclude the land from being ‘open and undeveloped’: posting of the land, fences, or agricultural or forestry-related structure.” Id. § 5794(c). As protective legislation goes, this is quite comprehensive. We cannot imagine that the Legislature meant to revoke protections from 4 The trial court noted, “[i]t is also conceivable that despite the improvements mentioned, the land involved here is more fairly characterized as ‘open and undeveloped.’ ” Although our conclusion is based on the plain language of the statute, our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.” 8 landowners where, as here, pathways, bridges, and perhaps even sandboxes are built on their otherwise “undeveloped” land.

Our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.”

REIBER, C.J, dissenting. I disagree with the majority in how it applies the law to the facts of this case. In my view, the facts compel us to conclude that defendants’ property was “developed for commercial recreational uses.” 12 V.S.A. § 5792(2)(B)(i). Therefore, the recreational-use statute does not protect defendants from liability, and the trial court’s decision was correct. Accordingly, I respectfully dissent.

In practice, defendants’ land was used for, and developed for, commercial recreational uses, and Parker Berry died while on that property for that commercial recreational use. Therefore, defendants’ land is excluded from protection pursuant to the recreational-use statute with regard to Parker’s death. The trial court did not err in so concluding, and I respectfully dissent. I am authorized to state that Justice Robinson joins this dissent

Divided Court reverses and vacates conviction for impeding a police officer, based on refusal to provide license and registration at traffic stop.

State v. Berard, 2019 VT 65  [filed September 27, 2019

REIBER, C.J. Defendant Stephanie Berard appeals the trial court's denial of her motion for judgment of acquittal following her conviction for impeding or hindering a police officer. We reverse and vacate defendant's conviction.

According to our prior holdings, a defendant violates § 3001 if the defendant (1) takes an action that the defendant has no legal right to do and (2) that action actually results in impeding an officer in the lawful execution of the officer's duties.

Here,the officer instructed defendant to provide him with her driver's license, registration, and proof of insurance. Defendant replied that she she would not provide them defendant was "[c]ombative" and "uncooperative" and her voice was "escalated and raised."

There is no question that defendant's refusal was unlawful. However, we do not conclude that defendant's refusal may, without more, constitute a violation of § 3001. We hold that a civil violation of the motor vehicle code, on its own, may not provide the basis for an impeding-officer offense, even when that violation is intentional.

CARROLL, J., dissenting..The majority concedes that defendant had no legal right to refuse to provide her driver's license and registration to a police officer who pulled her over after having witnessed her commit three motor-vehicle-code violations. Nonetheless the majority vacates defendant's conviction because it assumes that the Legislature did not intend that civil violations could provide the basis for impeding an officer.. I dissent and would affirm the jury's guilty verdict because he State, established each of the essential elements of hindering a law enforcement officer beyond a reasonable doubt.

Defendant had no legal right to refuse to provide her license and registration to the trooper and this impeded him in the lawful execution of his duties: she unjustifiably delayed him at this traffic stop and she forced him to summon and wait for another officer to arrive (who was then diverted from his own work). The Legislature, apparently mindful that it is imperative that Vermonters recognize and respect the authority of our law enforcement officers and obey their legal requests when failing to do so would be unlawful, chose to make impeding an officer in this manner a felony. I therefore would affirm defendant's conviction for impeding an officer and I dissent.

Divided Court reverses denial of plaintiff’s motion for judgment on the pleadings in Public Record Act case alleging state agency cannot charge for staff time spent in complying with requests to inspect public records.

Doyle v. City of Burlington Police Department, 2019 VT 66 [filed September 13, 2019]


REIBER, C.J.. Reed Doyle appeals the trial court's denial of his motion for partial judgment on the pleadings pursuant to Vermont Rule of Civil Procedure 12(c). In his motion, plaintiff argued that the Burlington Police Department (BPD) unlawfully withheld public records in violation of the Public Records Act (PRA) when it charged a fee for costs that would be incurred by complying with his request. Based on the plain language of the PRA, we hold that the BPD cannot charge for staff time spent in complying with requests to inspect public records. Accordingly, we reverse.

EATON, J., joined by Justice Carroll , dissenting. The Legislature recognized that record requests "entail expending public resources to fulfill requests" and thus established in the PRA "a process for public agencies to charge requesters for the actual costs of copying public records and for staff time associated with fulfilling requests." Sawyer v. Spaulding, 2008 VT 63, ¶ 11, 184 Vt. 545, 955 A.2d 532 (mem.) (citing 1 V.S.A. § 316).

SCOVT reverses dismissal of PCR proceeding, because of procedural unfairness in failing to review amended petition.

In Re Dow, 2019 VT 72 [filed October 4, 2019]

EATON, J. Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. The Defender General's Office reviewed the petition and determined that petitioner's claims lacked merit, pursuant to 13 V.S.A. § 5233(a)(3). Petitioner amended the PCR petition, adding arguments that had not been reviewed by the Defender General's Office, and proceeded without assigned counsel.The State filed a motion for summary judgment, which the PCR court granted. Petitioner appeals the PCR court's dismissal to this Court, arguing that the PCR court erred in granting the State's motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. We reverse and remand for the PCR court to conduct proceedings consistent with this opinion.

The lack of a complete record regarding the court's decision not to grant a second review for the amended petition results in a procedural failing that—in the interest of fairness and due process—requires us to vacate the PCR court's grant of summary judgment in favor of the State and remand for the court to determine whether or not petitioner's amended petition raises claims that may have substance and merit such that additional review by the Defender General's Office is required under 5233.

SCOVT affirms denial of motion to intervene, because -- on de novo review-- the motion was untimely.


State v. Quiros, 2019 VT 68 [Filed October 4, 2019]



CARROLL, J. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appeal an order denying their motion to intervene in the State's enforcement action brought against defendants. We conclude that, under a de novo standard of review, the intervention was untimely, and because untimeliness is a threshold issue under both Rule 24(a) and (b), we affirm.

Intervenors moved under Vermont Rule of Civil Procedure 24(a) and (b) to intervene in this action. Intervenors sought the "full recovery of any judgment obtained in this action" and the "[d]isgorgement and restitution of all earnings, profits, compensation and benefits." They also sought punitive damages The superior court denied the motion to intervene without reference to its timeliness.

A trial court must grant a motion to intervene as of right if it is (1) timely; (2) the intervenor has "an interest relating to the property or transaction" that is the subject of the underlying action; (3) the intervenor would be impaired or impeded in his or her ability to protect that interest depending on the outcome of the action; and (4) the intervenor's interest is not adequately represented by the existing parties. V.R.C.P. 24(a). Permissive intervention is available if the motion is (1) timely and (2) the prospective intervenor's "claim or defense and the main action have a question of law or fact in common." V.R.C.P. 24(b). Vermont Rule 24 is "substantially identical to Federal Rule [of Civil Procedure] 24" with "minor modifications" that are of no consequence to our analysis here. Reporter's Notes, V.R.C.P. 24.

We review the denial of a motion to intervene as of right de novo. In re GMPSolar-Richmond, LLC, 2017 VT 108, ¶ 19, 206 Vt. 220, 179 A.3d 1232 .

However, we review discretionary decisions of trial courts "under an abuse of discretion standard of review." HSBC Bank USA N.A. v. McAllister, 2018 VT 9, ¶ 8, 206 Vt. 445, 182 A.3d 593. We therefore review the denial of a motion for permissive intervention for an abuse of discretion. Helm. v. Helm, 139 Vt. 225, 227, 424 A.2d 1081, 1082 (1981).

Because the timeliness of a motion to intervene is "a matter within the discretion of the court," normally we review the trial court's ruling on timeliness for an abuse of discretion. Ernst v. Rocky Road, Inc., 141 Vt. 637, 639, 450 A.2d 1159, 1160 (1982).

However, when — as here — a trial court denies a motion to intervene but makes no mention of the motion's timeliness, we are left without a ruling to review for an abuse of discretion. In such a case, if there are sufficient facts to decide the issue of timeliness within the record — and assuming neither party is seeking a remand to establish a disputed issue of material fact — then, in accordance with four federal circuit couts of appeal, we review timeliness de novo.

When a motion to intervene is filed, the timeliness requirement under Rule 24(a) and (b) is a threshold question. NAACP v. New York, 413 U.S. 345, 365 (1973) ("Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of [Federal Rule 24] that the application must be `timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.").

An intervenor bears the burden of meeting all of the requirements for intervention, including timeliness. See Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990). The timeliness of a motion to intervene is assessed using a totality-of-circumstances analysis. Ernst, 141 Vt. at 640, 450 A.2d at 1160.

We have identified four factors that may be considered in assessing timeliness: (1) possible harm to plaintiffs; (2) an intervenor's ability to have sought intervention sooner; (3) the progress of the case; and (4) the availability of other means to join case. Shahi v. Madden, 2010 VT 56, ¶ 10, 188 Vt. 142, 5 A.3d 869.

Here, intervenors did not move for intervention until May 2018, more than two years after the complaint was filed in April 2016. Based on the facts and circumstances of this case, we conclude that intervenors have failed to carry their burden to show that they sought intervention in a timely manner. We therefore affirm.

SCOVT affirms the dismissal of investors’ claims against state actors in connection with Jay Peak EB-5 program, except reverses dismissal of claims of negligence and negligent misrepresentation, gross negligence, breach of contract and the implied covenant of good faith and fair dealing .

Sutton v. Vermont Regional Center, 2019 VT 71 [filed Ocober 4, 2019]

ROBINSON, J. Plaintiff investors appeal the dismissal of their claims against the Vermont Agency of Commerce and Community Development (ACCD) and current and former state employees arising from the operation of a federally licensed regional center in the United States Customs and Immigration Services (USCIS) EB-5 program. We reverse the dismissal of plaintiffs' claims of negligence and negligent misrepresentation against ACCD, gross negligence against defendants Brent Raymond and James Candido, and breach of contract and the implied covenant of good faith and fair dealing against ACCD. We affirm the dismissal of plaintiffs' remaining claims. 

Negligence. We conclude that plaintiffs have stated a claim for negligence based on ACCD's undertaking, and that the economic nature of their losses is not an impediment to such a claim Plaintiffs have alleged sufficient facts to make out a “special relationship” between defendants and plaintiffs such that they may recover for their purely economic losses. 

Negligent Misrepresentation. We conclude that plaintiffs have stated a claim for negligent misrepresentation under Restatement (Second) of Torts § 552(1)). 

Sovereign Immunity. We conclude that plaintiffs' claims are comparable to recognized causes of action against private persons and that the discretionary function exception to the State's waiver of sovereign immunity in the Tort Claims Act does not apply to these allegations. 

Gross Negligence against Individual Defendants. We conclude that certain individual defendants are absolutely immune from suit. That claim against another fails because plaintiffs have not alleged conduct by him that would overcome qualified immunity. That plaintiffs have not made out a claim of gross negligence against another individual but that. Plaintiffs have adequately alleged that Brent Raymond and James Candido are not shielded by qualified immunity and have made allegations that could establish gross negligence under the tort claims act. 

Breach of Contract and Covenant of Good Faith and Fair Dealing. We conclude that plaintiffs have made out claims for breach of contract and of the implied covenant of good faith and fair dealing sufficient to meet our lenient notice-pleading standards.

Third-Party Beneficiary Breach of Contract.
We conclude that the trial court properly dismissed plaintiffs' claims for breach of contract.

Securities Fraud.
We conclude that the trial court properly dismissed plaintiffs' claim of securities fraud under the Vermont Uniform Securities Act, 9 V.S.A. §§ 5501 and 5509, against all defendants. The claim falls squarely within an exception to the State's waiver of sovereign immunity through the Vermont Tort Claims Act, and as to the individual defendants, was not pled with the particularity required for averments of fraud under Vermont Rule of Civil Procedure 9(b). 

Breach of Fiduciary Duty Aiding, Abetting Breach of Fiduciary Duty and Breach of Implied Contract Breach-of-fiduciary-duty claims are distinct from ordinary negligence claims and rest on different elements of proof. Similarly, implied contract claims are distinct from contract claims. An implied-contract claim is not a contract claim. Because of inadequate briefing we do not address claims that the court erred in dismissing plaintiff’s claim of breach of fiduciary duty against all defendant, aiding and abetting breach of fiduciary duty against all defendants, and breach of implied contract against all defendants. 

Affirmed, except that the dismissal of the following claims is reversed:
  • ·negligence against ACCD;
  • ·negligent misrepresentation against ACCD;
  • ·gross negligence against defendants Brent Raymond and James Candido; and
  • ·Breach of contract and the implied covenant of good faith and fair dealing against ACCD.

The matter is remanded for further proceedings consistent with this opinion.

Tuesday, July 16, 2019

SCOVT declines VRAP 5 appeal from denial of pretrial motion to suppress where conditional pleas is available.


State v. Lyford, 2016 VT 118 (mem.) (overruled by State v. Wesley Haynes, Tristan Harris and Dennis Magoon,2019 VT 44)

The criminal division of the superior court granted defendant's motion for permission to file an interlocutory appeal, pursuant to Vermont Rule of Appellate Procedure 5(b), from the court's decision denying defendant's pretrial motion to suppress and dismiss, which alleged an illegal canine search. For the reasons explained below, we dismiss the appeal as improvidently granted. See V.R.A.P. 5(b)(8) ("On its own or the appellee's motion, the Supreme Court may at any time dismiss the appeal as improvidently granted.").

Since 1989, a defendant, with the approval of the trial court and the State, may enter a conditional guilty plea while reserving the right to appeal "the adverse determination of any specified pretrial motion." V.R.Cr.P. 11(a)(2); id. Reporter's Notes-1989 Amendment. Generally, this Court does not accept interlocutory appeals of decisions denying motions to suppress in criminal cases unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.

This is consistent with our general rule that "an appeal will not lie to review the denial of a pretrial motion to suppress evidence on the claim of illegal search and seizure." State v. Blondin, 128 Vt. 613, 615-16, 270 A.2d 165, 166 (1970) (citing 13 V.S.A. §§ 7401, 7403 in support of "the general rule that an appeal should not be permitted in criminal causes until a final verdict, adverse to the appellant, has been rendered in the trial court," and noting that 12 V.S.A. § 2386 "affords limited variance to the general rule by granting discretionary authority" to the superior court "to permit an appeal before final judgment for the determination of questions of law"); see also ABA Minimum Standards for Criminal Justice, Criminal Appeals, Standard 21-1.3(b)-(c) (stating that defendants generally should not be permitted to take interlocutory appeals in criminal cases and that conditional plea procedure should be established to allow review after final judgment of decisions on contested pretrial motions such as motions to suppress evidence).

Although we recognize that on occasion this Court has accepted interlocutory appeals from decisions denying motions to suppress, in this case defendant has not indicated that a conditional plea is unavailable or impracticable under the circumstances, and the trial court has not made any findings indicating that the criteria set forth in V.R.A.P. 5(b) have been met. Accordingly, we decline to accept the appeal.




Appeal dismissed as improvidently granted.

SCOVT reverses Secretary’s reversal of Human Services Board’s reversal of Department’s denial of petitioner’s request for developmental disability services , because the Board’s factual findings that had support in the record .

In re R.R., 2019 VT 31  [filed 4/26/2019]

SKOGLUND, J. The fundamental issue in this case is whether petitioner should be found eligible for developmental disability services. The Department of Disabilities, Aging and Independent Living (DAIL) denied petitioner’s request for services, finding him ineligible. The Human Services Board reversed DAIL’s decision. The Secretary of the Agency of Human Services reversed the Board’s decision and reinstated DAIL’s decision. This appeal followed.

Before us is the question of whether a standard error of measurement is properly applied to IQ scores used to qualify persons for developmental disability services.  The SEM for an IQ test is plus or minus five points. If the SEM is taken into account, then scores at or below 75 would qualify under the regulations as “a full scale score of 70 or below”

We conclude that the plain language of the applicable regulations incorporates the standard error of measurement of plus or minus five points for an IQ test and, therefore, petitioner’s IQ score of 75 combined with the other evidence in the case qualified him for services.

 The Secretary is limited in reviewing the Board’s factual findings and may “reverse or modify factual findings in a board decision only if ‘the board’s findings of fact lack any support in the record.’”  The Secretary rejected the Board’s finding that the 2007 score was the most reasonable and appropriate basis to determine petitioner’s eligibility,   concluding that there was “no clinical basis in the record” for the finding.  Because the Board’s assessment that petitioner’s 2007 score was the most accurate reflection of his level of functioning is supported by the record, the Secretary lacked authority to reverse or modify it.

We conclude that the Secretary lacked authority to reverse the Board’s factual findings and erred in interpreting the regulations. Therefore, we reverse the Secretary’s decision and remand for reinstatement of the Board’s decision

Reversed and remanded.

SCOVT vacates and dismisses charge of disorderly conduct.

State v. Treyez L. McEachin, 2019 VT 37 [filed 5/24/2019]

ROBINSON, J. Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argues that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should be dismissed. He contends that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should be suppressed, and the assault charge should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the motion to suppress the evidence underlying the assault charge, and affirm that conviction.

A person commits the offense of disorderly conduct by “engag[ing] in fighting or in violent, tumultuous, or threatening behavior” with an “intent to cause public inconvenience or annoyance, or recklessly creat[ing] a risk thereof.” 13 V.S.A. § 1026(a)(1). The disorderly-conduct statute identifies four other bases for a disorderly-conduct charge that are not applicable here. See 13 V.S.A. § 1026(a)(2)-(5). 

On New Year’s Eve in 2016, four police officers were on foot patrol in Burlington when they received a report that a man was spitting on the window of a local bar. They went to investigate and found defendant outside the establishment.  The officers asked defendant to leave and he did, but. minutes later defendant came walking down the sidewalk back toward the bar. Officer Hodges testified that defendant “changed his trajectory so he was walking directly towards me.” He said defendant “was looking away from me . . . as if he was trying to . . . make it appear that he [wa]s not watching where he was going.” Defendant came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant back. Defendant began yelling profanities. 

We conclude that the evidence, taken in the light most favorable to the State, does not tend to show beyond a reasonable doubt that defendant , by walking toward Officer Hodges, committed the offense of disorderly conduct through fighting or violent, tumultuous, or threatening behavior, Accordingly we reverse the trial court’s denial of defendant’s motion to dismiss.

We reject defendant’s argument that because the trial court found that the officers unlawfully prolonged their encounter with him by ordering him not to walk by the bar, it should have suppressed all subsequent evidence, including the evidence that he kicked a police officer later that evening, for which he has been charged with simple assault on a law-enforcement officer. We conclude that defendant’s action in kicking the officer is causally distinct from the officers’ actions in ordering him around the bar, and thus suppression is not warranted.

Defendant’s conviction of disorderly conduct is vacated and his motion to dismiss the disorderly-conduct charge is granted. Defendant’s conviction for resisting arrest is vacated and the charge is dismissed. The denial of defendant’s motion to suppress as it relates to the acts underlying the assault charge, and his conviction on that charge, are affirmed.

Impeachment of defendant who talks is not an impermissible comment on silence.

State v. Jeremy Fischer, 2019 VT 39 [filed 5/24/2019]


REIBER, C.J. Following a jury trial, defendant appeals his conviction of sexual assault of a minor in violation of 13 V.S.A. § 3252(c). Defendant argues the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. We affirm.

Here defendant did not assert his right to silence. He spoke with Detective Tallmadge.. Under the facts of this case, commenting on defendant’s omissions does not raise the concerns of fundamental fairness and due process present in Doyle. The prosecution was free to impeach defendant based on what he said and failed to say.

Defendant argues that Ladue allows the State to comment on the omissions in defendant’s statements only when the statements made to the police are inconsistent with defendant’s testimony at trial. 2017 VT 20, ¶¶ 21-25. However, even accepting defendant’s view of Ladue, defendant offered one explanation of the events to Detective Tallmadge. Then, defendant offered a different explanation at trial. 

The fact that defendant offered two independent explanations at two distinct times raises the question of defendant’s credibility—a question that was fairly brought to the jury’s attention.

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

SCOVT reverses denial of access to criminal court record and remands for joinder of additional parties and for further proceedings.


SKOGLUND, J. In this matter, Jacob Oblak petitioned the superior court for access to an affidavit of probable cause filed in a criminal case and was denied. He appeals to this Court and argues that Vermont Rule of Public Access to Court Records 6(b)(24), which excludes from public access records filed in a criminal proceeding when no probable cause has been found, was not intended “to transform traditionally public documents [including affidavits of probable cause] into secret ones.” He further argues that the lower court’s interpretation of Rule 6(b)(24) violates the First Amendment.

Because we find that the lower court should have considered his petition in light of the “Exceptions” provisions of Rule 7, we reverse and remand. V.R.P.A.C.R. 7(a)(3).

We remand this matter to the civil division of the superior court for a determination that circumstances exist that weigh in favor of or against access to the requested documents. The process contemplated by Rule 7(a) affords “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs . . . a right to notice and hearing before such order is issued.” Arguably, this would include the state’s attorney who filed the affidavit and W.R. and his counsel. We leave it to the court below to decide if other entities are necessary for resolution of this issue and to consider again petitioner’s First Amendment challenge as part of the analysis under Rule 7.

With proper parties present, the court will be able to assess whether “a specific showing of substantial harm to public or private interests” would overcome any right of access. In re Sealed Documents, 172 Vt. at 154, 772 A.2d at 521.

A defendant in a criminal action may seek interlocutory review under VRAP 5 without showing that a conditional guilty plea is not practicable or available before seeking such interlocutory review (overruling State v. Lyford, 2016 VT 118.),


State v.  Haynes, 2019 VT 44 [filed 6/28/2019]

PER CURIAM. Defendants move to reconsider this Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea.

In January 2019, this Court dismissed the interlocutory appeals quoting State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted “ ‘unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.’ ”

Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met.

In 1971 the Legislature amended § 2386 into separate subdivisions relating to civil and criminal cases. Subdivision (a) regarding civil actions provided that appeals before final judgment for questions of law “may be taken in such manner and under such conditions as the supreme court may by rule provide.” 1971, No. 185, § 57. Subdivision (b) maintained the existing language of the statute, providing that the trial court in its discretion and before final judgment may permit an appeal to be taken by the respondent or the state in a criminal cause.

Following the statutory amendment and the promulgation of Appellate Rule 5, three main themes have been consistent in this Court’s decisions regarding interlocutory appeals by defendants in criminal cases. First, review of denials of motions to suppress in criminal cases are interlocutory and not reviewed as of right until after final judgment. Second, denials of motions to suppress usually do not meet the criteria in  Appellate Rule 5. Id. Third, this Court has the authority to dismiss interlocutory appeals, even when certified by the trial court.


In 1989, Rule 11 of the Vermont Rules of Criminal Procedure was amended to authorize conditional guilty pleas. See V.R.Cr.P. 11(a)(2). The conditional guilty plea was designed to allow defendants who were not eligible to appeal through interlocutory means to get appellate review of pretrial motions without having to go through an entire trial. The Court continued to both grant and deny interlocutory appeals filed by defendants in criminal actions without reference to the availability of a conditional guilty plea.

Upon consideration, we overrule Lyford to the extent that it holds that a defendant is precluded from seeking interlocutory appeal through Appellate Rule 5 if a conditional guilty plea is available. 

 In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

An interlocutory appeal is appropriate where the order is a “controlling question of law about which there exists substantial ground for difference of opinion” and “an immediate appeal may materially advance the termination of the litigation.” V.R.A.P. 5(b)(1)(A), (B). Regardless of whether the trial court has determined that a case is appropriate for interlocutory appeal, this Court retains authority to dismiss an appeal if the trial court abused its discretion in allowing it.

We review the trial court’s decision to grant interlocutory appeal for an abuse of discretion.. Here, we do not have an explanation of the reasons that the trial court exercised its discretion. Although the court has discretion to allow an interlocutory appeal, it must provide at least some basis for this Court to determine how that discretion was exercised. Therefore, we dismiss the appeals to allow the trial court to issue a new decision providing the grounds for its decision on the motion for interlocutory appeal.

Upon reconsideration, the interlocutory appeals are dismissed without prejudice to defendants refiling after the trial court issues a decision. 



SCOVT NOTE.ON OVERRULING RECENT PRECEDENT

The Court has recognized the importance of the doctrine of stare decisis, and has noted that, although the Court is not "slavish adherents" to this doctrine, it does not "lightly overturn recent precedent," especially where the precedent could be changed easily by legislation at any time O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.)


State v. Haynes overrules a three-year-old case. But this is not a record. See Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (order being appealed need not be specified in the notice of appeal, overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking V.R.A.P 3(a) (an appeal from a judgment preserves all claims of error in the record)).


SCOVT reinstates jury verdict for plaintiff repair shop, construing collision coverage as promise to pay the amount of money needed to repair an insured vehicle to preaccident condition, regardless of the amount the insurer deemed sufficient to do the repairs.

Parker's Classic Auto Works, Ltd. v. Nationwide Mutual Insurance Company, 2019 VT 46 [filed 6/28/2019]


CARROLL, J. Plaintiff appeals a judgment entered in favor of defendant following a trial in which a jury determined that defendant breached an insurance contract with plaintiff’s assignors. The jury awarded plaintiff $41,737.89 in damages. After the trial the superior court concluded that, as a matter of law, plaintiff could not show that his assignors were damaged by a breach of contract by defendant. We reverse this determination, vacate the judgment that was entered in favor of defendant, and remand with direction to the superior court to reinstate the jury’s verdict and its award of damages.

Over seventy insurance claims, which all arise under identical insurance policies, have been combined in this breach-of contract case. For each insurance claim plaintiff repaired a car belonging to an insured, restoring it to preaccident condition, and, after receiving a post-loss assignment from an insured, submitted itemized bills to defendant to recover for its services. In each instance, defendant paid less than what plaintiff had billed to complete the repair. The difference between the cost of repair billed by the repair shop and the amount paid by the insurance company—to whatever extent it is covered by the insurance policy—is called a short pay in the collision-repair industry.

The jury returned a verdict finding defendant liable for breach of the insurance policy and awarding plaintiff $41,737.89.  Defendant filed a renewed motion for judgment as a matter of law under Vermont Rule of Civil Procedure 50(b), which the court granted. The court reasoned that the insureds could not have sued defendant for sums that were entirely within defendant’s discretion to award.

The trial court interpreted the insurance policy, which was silent on the matter, to only 

Wednesday, July 10, 2019

SCOVT NOTE ON THE LAW OF PETS


©2009- 2023 Allan R Keyes, Esq., all rights reserved


The finder of a lost dog, by caring for it and sheltering it for over a year, became its rightful owner. Morgan v. Kroupa, 167 Vt. 99 [filed September 5, 1997], noting that courts simply cannot evaluate the “best interests” of an animal.

Town, under dog control ordinance, validly transferred possessory interest in a lost dog to adoptive owners, even though the true owner was known. Lamar v. North Country Animal League, 170 Vt. 115 [filed November 12, 1999], noting that although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal would be unsuccessful.

Pets are not subject to the law of conversion-- but a horse is. Hegarty v. Addison County Humane Society2004 VT 33 [filed April 2, 2004], noting that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests.

No damages may be awarded for lost companionship or emotional distress resulting from the wrongful death of a cat. Goodby v. Vetpharm, 2009 VT 52. [filed May 8, 2009] noting that there may be a more appropriate measure of damages for the tangible loss of pets due to the negligence of others based on the particular pet’s value to its owner, beyond simply its value to a stranger in the market.

Cat precedent applies to dogs. Court refuses noneconomic damages for the malicious destruction of pet dog. Scheele v. Dustin, 2010 VT 45 [filed May 21, 2010] noting that pets occupy a legal realm somewhere between chattel and children.

Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition. Hament v. Baker, 2014 VT 39 [filed April 25, 2014] noting that, in contrast to a child, a pet is not subject to a custody award following a determination of its best interests; but that, in awarding the dog to one of the parties the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse.

Family Division "Pet allocation"  order properly considered, under Hament ,  that  husband’s denial of visitation during separation showed lackof "regard “for the pet's emotional attachment to wife” LaRiviere v. Shea, 2023 VT 37(divided Court )

Liability for dog bite is based on negligence. Martin v. Christman, 2014 VT 55 [filed 13-Jun-2014], reaffirmiing the Court's longstanding rejection of strict liability in dog bite cases, and noting that, with the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.

Landowner had no duty to passing motorist to prevent escape of horse not in his control. Deveneau v. Wielt, 2016 VT 21 [filed March 4, 2016].

Search warrant for dogs was not overbroad in part because the law may provide protection to dogs in their own right “as living, sentient beings.” State v. Sheperd, 2017 VT 39 [filed June 2, 2017].

Although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal found to be a threat to others. Gill Terrace Retirement Apartments, Inc. v. Johnson, 2017 VT 88 [filed October 6,2017].

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. Gross v. Turner, 2018 VT 80 [filed August 10, 2018], noting that landlords are not obligated to conduct background checks on tenants’ pets and that a dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm.

Tuesday, July 9, 2019

Pets are not subject to the law of conversion-- but a horse is.

Hegarty v. Addison County Humane Society, 2004 VT 33 [filed April 2, 2004}


SKOGLUND, J.On suspicion of inadequate care, defendant Addison County Humane Society (ACHS) seized Suzanne and Elizabeth Hegarty's elderly mare, Paka. The Hegartys sued ACHS in Addison Superior Court alleging claims for conversion and intentional infliction of emotional distress. The superior court granted ACHS's motion for summary judgment and the Hegartys appealed. we affirm.

The Hegartys argue that when ACHS seized Paka it unlawfully withheld possession of their property in exclusion and defiance of their right and the court should have found a conversion as a matter of law.

Initially Hegartys  contend that the trial court erred when it relied on Morgan v. Kroupa to characterize Paka as a pet and thus not subject to a conversion claim. 167 Vt. 99, 103-05, 702 A.2d 630, 633-34 (1997). We agree.

The trial court correctly cited Morgan for the proposition that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests. Id. at 105, 702 A.2d at 634. We do not quarrel with this analysis, but rather with the court's suggestion that our Morgan ruling supports characterizing Paka as a pet.

 In Morgan, we explicitly distinguished between pets — dogs, cats, and hamsters — and "agricultural animals with substantial economic value." Id. The fact that a horse may also be considered a pet by its owner does not remove it from the category of agricultural animal with respect to the property interests at issue in a conversion claim. Id. Paka is not a pet and the trial court's ruling to the contrary was in error.

There is no dispute that the Hegartys are Paka's rightful owners or that, by seizing the horse, ACHS was withholding possession of Paka from them. The question is whether that deprivation was lawful. . . . 

Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiffs-Appellants.. . .

Search warrant for dogs was not overbroad in part because animals are living, sentient beings to which the law may provide protections in their own right

State v. Sheperd, 2017 VT 39 [Filed June 2, 2017]

ROBINSON, J. In this case involving multiple counts of cruelty to animals, defendant appeals the trial court's denial of a motion to suppress arguing that: the warrant was unconstitutionally broad in allowing the search for and seizure of any animal found at defendant's home. We affirm on this issue.

We reject defendant's argument that the warrant was unconstitutionally broad because it authorized the officers to search for and remove any animals, although the warrant only listed two specific pit bulls. Probable cause in this case supported the warrant's full scope and the warrant's language was sufficiently particular. We conclude on the record of this case that once the animal control officer established probable cause concerning the dog on the porch, she had probable cause to search for and seize all dogs at defendant's home.

Additional considerations come into play when a warrant calls for the search for and seizure of animals. This Court has recognized that nonhuman animals occupy a unique legal status in that they have traditionally been regarded as property but are nonetheless "different from other property." Hament v. Baker, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461. Accordingly, animals "generally do not fit neatly within traditional property law principles," but instead "occup[y] a special place somewhere in between a person and piece of personal property." Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (quotation omitted). 

Various laws limit peoples' ownership rights over animals, requiring them to provide a minimum level of care to animals in their possession and prohibiting them from treating animals the same way they might treat true, nonsentient property. See, e.g., 13 V.S.A. §§ 352, 352a (criminalizing cruelty to animals); id. § 386 (prohibiting confinement of animals in motor vehicles when conditions are dangerous, and allowing state agents to remove animals from a vehicle to prevent harm). This special treatment of animals reflects a recognition that animals are living, sentient beings to which the law may provide protections in their own right. Hament, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461.

Animal welfare is a factor we must consider when determining whether a search or seizure was lawful