In short, Neighbor claims that party status for purposes of Rule 60(b) should be broadly interpreted in environmental appeals because putative parties do not receive notice consistent with Rule 4 in such proceedings.
Supreme Court of Vermont Opinions Selected, edited, rewritten, condensed and digested © 2009-2023 Allan R. Keyes.
In short, Neighbor claims that party status for purposes of Rule 60(b) should be broadly interpreted in environmental appeals because putative parties do not receive notice consistent with Rule 4 in such proceedings.
Statev. Ettore, 2024 VT 52 [filed
COHEN, J. In this interlocutory appeal, defendant Eileen
Ettore challenges the trial court’s denial of her motion to suppress an
evidentiary breath-alcohol test, which she filed in both her criminal and civil
dockets. We agree with defendant that, under the plain language of 23 V.S.A. §§
1202(d)(5) and 1203(c), law enforcement must provide a suspect with the results
of their first breath test before requiring the suspect to elect whether to
take a second test. We reverse the court’s decision and remand for additional
proceedings in the criminal case and for entry of judgment in defendant’s favor
in the civil suspension proceedings.
Defendant argued below that the officer violated her
implied-consent rights by asking her if she wanted a second test before
informing her of the results of the first test. The relevant language in the
informed-consent statute is as follows:
At the time a test is requested,
the person shall be informed of the following statutory information: . . .
A person who is requested by a law enforcement
officer to submit to an evidentiary test administered with an infrared
breath-testing instrument may elect to have a second infrared test administered
immediately after receiving the results of the first test.
23 V.S.A. § 1202(d)(5). Section 1203(c) provides that “[a]
person tested with an infrared breath-testing instrument shall have the option
of having a second infrared test administered immediately after receiving the
results of the first test.”
The trial court concluded in relevant part that defendant’s right to be informed about the ability to elect a second breath test matured at the time the officer requested an evidentiary breath sample under and that the officer properly informed defendant of her implied-consent rights, including her right to request a second breath test upon receiving the results of the first, before she took the first test.
We disagree and conclude, based on the plain language of the
laws, that the Legislature intended that suspects possess the necessary
information to make an informed decision about the exercise of their statutory
rights. The officer asked defendant if she wanted a second test before she was
provided the results of the first test. Without the test results, defendant
could not make a fully informed decision about whether to request a second
test. The process laid out by statute was not followed.
Mindful of the important rights at stake, and the critical
need for informed decisionmaking recognized by the Legislature, we reverse the
trial court’s decision in this case. Defendant is therefore entitled to
judgment in her favor in the civil-suspension proceedings and we remand the
civil matter for entry of such judgment. Granting the motion to suppress does
not dispose of the two pending criminal charges against defendant, however, and
the criminal case is thus remanded for additional proceedings
Reversed and remanded for additional proceedings
CARROLL, J., (Joined by Waples,J.) dissenting. Contrary to
the majority’s holding, neither statute requires an officer to ask a suspect
after the first test is administered if they would like to take a second test. The
verb “elect” in § 1202(d)(5) gives the suspect the choice to take another test
but puts no duty on the police officer to prompt the suspect to make that
choice. See 23 V.S.A. § 1202(d) (“At the time a test is requested, the
person shall be informed of the following statutory information.”
(emphasis added)). Section 1203(c)’s “shall have the option of having a second
infrared test administered immediately after receiving the results of the first
test” means that a law-enforcement
officer must instead not intentionally deprive a suspect of the option at the
appropriate time.
In sum, § 1202(d)(5) and § 1203(c) required that Officer
Perkins advise defendant of her right to take a second test when Officer
Perkins requested the first evidentiary test. There is no dispute Officer
Perkins advised defendant of this right. But now, for the first time, the
majority holds that appropriately disclosing the implied-consent warnings under
the statute is not enough. Moreover, for the first time, the majority does not
require a showing of bad faith or prejudice to suppress a breath test. Indeed,
the majority no longer requires a defendant to even argue bad faith or
prejudice to suppress a breath test. Instead, for the first time, suppression
is mandatory if the officer deviates in the slightest way from reminding a
defendant what was already disclosed to the defendant and to which the
defendant already affirmatively acknowledged. I submit that this result goes
beyond the relevant statutes, our precedents, the trial court’s credibility
determinations, and defendant’s own arguments on appeal.
I must respectfully
dissent.
Driscoll v. Wright Cut and Clean LLC, 2024 VT 49 [August 2, 2024]
EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and Wright Cut and Clean, LLC. Based on the evidence plaintiff presented at trial, defendants moved for judgment as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The court granted defendants’ motion. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter of law. Because we determine plaintiff failed to produce sufficient evidence of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.
On July 18, 2019, plaintiff was running in a southerly
direction on the left side of the road, facing into the flow of traffic. At the
same time, defendant Benjamin Wright (driver), an employee of defendant Wright
Cut and Clean, was driving a company truck also in a southerly but on the right
side of the road. The truck was pulling a trailer. As the truck approached plaintiff from behind,
plaintiff looked behind him, and then moved about five feet to his left, toward
the left edge of the road. As the truck passed plaintiff, driver looked in his
side review mirror and saw plaintiff move get struck by the trailer. Plaintiff
was unconscious when police arrived, and he has no memory of the accident.
The causation element of negligence requires sufficient
evidence for a reasonable jury to conclude that, but for some negligent action
by the defendant, the plaintiff would not have been harmed. Collins v.Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of injury
alone is generally insufficient to show causation. Instead, the plaintiff must
“rely on expert testimony” to demonstrate causation unless the circumstances
are plain enough that “only common knowledge and experience are needed to
comprehend it.” Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 20,
206 Vt. 157, 179 A.3d 182 The absence of expert testimony or other viable
evidence showing a causal link with the injury precludes a finding that the
plaintiff sufficiently established that element. Bernasconi v. City of Barre,
2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d 720; Lasek v. Vt. Vapor, Inc., 2014
VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.
Plaintiff put on expert testimony at trial from a forensic
engineer who opined that, at impact, “there wasn’t a four[-] foot safety gap or
more between [plaintiff] and the trailer.” The expert admitted, however, that there was
“no physical evidence to establish where [plaintiff] was located” at any time
before impact, and he was unable to provide conclusions on any causative factor
leading up to the incident. The expert did not “know anything before [impact].”
As such, he was unable to say whether there was in fact a “four[-]foot safety
gap” between plaintiff and the trailer during the time leading up to impact or
if the lack of such a gap, if any, was a causative factor in the collision. And
he did not identify how, if at all, the truck’s speed or position or the
driver’s alleged failure to better warn plaintiff provided any causal link
between driver’s alleged negligence and plaintiff’s injury.
No other witness ever indicated what specific aspect of
driver’s allegedly negligent actions caused plaintiff’s resulting harm. Because
of plaintiff’s admitted inability to recall the incident, he could give no
testimony on the subject. Absent specific evidence of causation, a jury would
have to rely on mere speculation to determine what, if anything, was the causal
link between driver’s actions prior to impact and plaintiff’s resulting injury.
Absent the necessary evidence of causation, judgment as a matter of law must be
affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177
Vt. 575, 861 A.2d 1135 (mem.) (recognizing that failure to prove any one
element of negligence claim warrants judgment as matter of law).
Affirmed.
Berkshire Bank v. Kelly, 2023 VT 2
WAPLES, J. Plaintiff Berkshire Bank filed this action
seeking possession of funds in an investment account owned by defendant Thomas
Kelly, which defendant purportedly pledged as security for a business loan to
his sister Dorothea Kelly. The civil division granted summary judgment in
favor of defendant, concluding that plaintiff did not have a valid security
interest in the account. We agree and affirm.
The trial court ruled a a security interest never attached under 9A V.S.A. § 9-203(b) and granted defendant's motion for summary judgment because plaintiff never possessed or controlled the Merrill Lynch account as required by the language of the pledge agreement.
Article 9 provides that a creditor has a secured interest in
collateral when the interest attaches, meaning "when it becomes
enforceable against the debtor with respect to the collateral." 9A V.S.A.
§ 9-203(a). In turn, a security interest becomes enforceable against the debtor
when one of four specified evidentiary conditions is satisfied. Id. § 9-203(b)
The parties agree that prior to the commencement of this
litigation the Merrill Lynch account was never in plaintiff's possession or
control, ruling out three of the methods of satisfying the evidentiary
requirement. See 9A V.S.A. § 9-203(b)(3)(B)-(D) (providing for possession,
delivery, or control pursuant to security agreement as alternative evidentiary
tests of enforceability).
Accordingly, the security interest only attached if the
evidentiary condition set forth in § 9-203(b)(3)(A) was met; that is, if
defendant "authenticated a security agreement that provides a description
of the collateral.".
Here, the agreement between the parties defined the
collateral as "all of [defendant's] property . . . in the possession of,
or subject to the control of, [plaintiff] . . . whether existing now or later
and whether tangible or intangible in character, including" defendant's
Merrill Lynch account.
On appeal, plaintiff argues that the security agreement describes the collateral as the Merrill Lynch account, and that the possession-or-control language is not a precondition to the creation of the security interest.
The language of the clause does not support plaintiff's
interpretation, since it refers to the account already being in plaintiff's control.
Under the plain meaning of this language, collateralization was dependent on
transfer of possession or control of the Merrill Lynch account to plaintiff.
Because that event never occurred, the security interest never attached.
Plaintiff argues "a security agreement may create
or provide for a security interest in after-acquired collateral." 9A
V.S.A. § 9-204(a), and that the pledge agreement described the collateral as
property within plaintiff's possession or control "whether existing now or
later." We are not persuaded by
this argument. The account never met the description of the collateral because
plaintiff never took control of it as the agreement contemplated. Section 9-204
applies to property in which the debtor does not have any rights at the time
the security agreement is executed. The rule on after-acquired property does
not assist plaintiff.
Finally, plaintiff argues that its security interest eventually did attach when defendant complied with the court's order directing him to set aside $208,000 "as security for the asserted debt in this matter" by placing that amount in escrow with his attorney, claiming that plaintiff took possession of the collateral under 9A V.S.A. § 9-313(c)(1) at that point. We disagree.
Section
9-313(c)(1) provides that a secured party takes possession of collateral held
by a person other than the debtor when "the person in possession
authenticates a record acknowledging that it holds possession of the collateral
for the secured party's benefit." Id. cmt. 3. However, "a court may
determine that a person in possession is so closely connected to or controlled
by the debtor that the debtor has retained effective possession, even though
the person may have agreed to take possession on behalf of the secured party."
Id.
We conclude that such is the case here. We see nothing in
the record indicating that defendant's counsel was acting as an agent of
plaintiff. Under these circumstances, we conclude that plaintiff did not take
possession of the collateral when the funds were placed in escrow by court
order.
Because defendant's
Merrill Lynch account was never within plaintiff's control, it did not fall
within the description of collateral contained in the parties' pledge
agreement, and no security interest ever attached to the account. The
civil division therefore correctly granted summary judgment in favor of
defendant.
COHEN, J. Defendant appeals from the civil division’s final
judgment suspending his driver’s license. He argues that the trial court abused
its discretion in admitting the results of an evidentiary blood-alcohol test
because the State did not offer sufficient evidence to demonstrate that
defendant’s blood sample was collected and analyzed in compliance with
Department of Public Safety (DPS) rules. We conclude that there was an
insufficient foundation to allow admission of the test result and therefore
reverse and remand for entry of judgment for defendant.
The trial court overruled the defense objection, reasoning
that the plain terms of 23 V.S.A. § 1203(d) do not require anything more than a
“conclusory” statement of compliance with DPS rules.
To provide a proper foundation for admission of blood-test
results, the State must show that the sample was analyzed by gas chromatography
according to the performance standards established in the DPS rules. The State
submitted no foundational evidence to demonstrate compliance with any of these
performance standards. It would serve no
purpose to remand because the record is
devoid of foundational evidence regarding performance standards.
We emphasize the narrowness of our decision today. We are
not deciding the level of detail necessary in the State’s foundational evidence
for admitting blood-test results. The trial court may, or may not, be correct
as a general matter that a conclusory statement of compliance with 23 V.S.A. §
1203(d) will suffice.
We need not reach that inquiry because the State did not
meet the minimal burden to present an adequate foundation to admit the results
of defendant’s blood-alcohol test into evidence.
The court erred by admitting and relying on that evidence. The State therefore could not prove an essential element, 23 V.S.A. § 1205(h)(1)(D), and the judgment in the State’s favor cannot stand.
Reversed and remanded for entry of judgment for defendant.
City of Burlington v. Sisters & Brothers Investment Group, LLP, 2023 VT 24
CARROLL, J. Defendant-landowner
Sisters & Brothers Investment Group, LLP (SBIG) appeals an
environmental-division enforcement order enjoining it from using real property
in the City of Burlington, ordering it to address site-improvement deficiencies
as required by an agreement executed by a prior owner and the City, and
imposing $66,759.22 in fines. We reverse and remand.
The trial court “independently”
concluded that SBIG had “failed to ever comply with a 2004 agreement,” and substantially relied on
that finding in assessing a fine of $50 per day for a zoning violation.
SBIG’s arguments challenging the DRB
decision fail under our long line of precedent forbidding collateral attacks on
unappealed DRB orders.
SBIG next contends that the trial
court abused its discretion by finding that SBIG was liable for 892 days of
continuing violations, each subject to penalty. We disagree. We have held that
municipalities “need not produce evidence of a continuing violation for each
and every day.”
Finally, we agree with SBIG’s argument
that t the $66,759.22 fine was an abuse of discretion because the court found
that it knowingly breached the 2004 agreement without any evidence
demonstrating that SBIG knew or should have known of the agreement’s existence.
The mere fact of SBIG’s purchase one day following the agreement’s execution
does not reasonably lead to the conclusion that it knew or should have known of
its existence, even when viewed in the light most favorable to the City. More
evidence was needed for the court to conclude SBIG was aware of and
intentionally disregarded the agreement from the time it purchased the property
for the purpose of calculating fines.
Because the trial court erroneously
found that SBIG knew or should have known about the 2004 agreement, we reverse
the judgment order, direct the trial court to strike the condition requiring
SBIG to address the site-improvement deficiencies in the agreement, and remand
for the court to recalculate fines without considering whether SBIG violated the
agreement’s terms.
Considering this disposition, we need
not address SBIG’s remaining arguments that the fine was punitive rather than
remedial or that the 2004 agreement is moot.
Reversed and remanded to strike the
condition requiring SBIG to address site-improvement deficiencies in the 2004
agreement and to recalculate fines without considering the 2004 agreement.
Vitalev. Bellows Falls Union High School, 2023 VT 15
EATON, J. Plaintiffs are three sets of parents of schoolchildren who reside in school districts which maintain a public school for at least some grades and do not provide the opportunity for children to attend the public or independent school of their parents’ choice for all grades at the state’s expense. They raise a facial constitutional challenge to Vermont statutes that allow school districts to choose whether to maintain a public school, permit children to attend an out-of-district public school or an independent school at the state’s expense, or some combination of both. The civil division dismissed parents’ complaint for failure to state a claim upon which relief could be granted. We affirm.
Plaintiffs seek total school choice
for parents at the state’s expense for all elementary and high school
education. They claim that they are being denied school choice merely because
they live in a district that has a public school, resulting in an inability to
tuition their children at the state’s expense to the schools of their choice
while parents living in districts that do not have a public school have school
choice through tuitioning. Parents assert that their lack of school choice,
while parents in tuitioning districts have school choice, violates the
Education and Common Benefits Clauses of the Vermont Constitution. See Vt.
Const. ch. II, § 68; id. ch. I, art. 7.
Under the Education Clause and Common
Benefits Clause of the Vermont Constitution, “the state must ensure substantial
equality of educational opportunity throughout Vermont.” Brigham v. State
(Brigham I), 166 Vt. 246(1997) (per curiam). at 268. However, the Education
Clause “states in general terms the state’s responsibility to provide for
education, but is silent on the means to carry it out.” 166 Vt. at 264. School
choice is permitted but not required by the Education Clause; there is no
entitlement to school tuitioning at the state’s expense derived from the
Education Clause itself. “[T]here is no constitutional right to be reimbursed
by a public school district to attend a school chosen by a parent.” Mason v.
Thetford Sch. Bd., 142 Vt. 495, 499(1983)
Differences in the availability of
school choice alone do not constitute a substantial inequality of educational
opportunity. Parents must show that school choice results in
substantially different educational opportunities. To state a claim for a
Common Benefits Clause violation under Baker,, it is insufficient to assert
that there is a law that results in some people having a benefit and others
not, accompanied by the legal conclusion that this difference in treatment
violates the Vermont Constitution. A complaint must demonstrate, on its face,
that the challenged law excluding some part of the community from a government
benefit does not bear a reasonable and just relation to a governmental purpose.
Parents’ failure to allege facts to
connect school choice with better educational opportunities is fatal to their
claim. A statement that the statutes are
“inherently unequal” and “patently unfair” does not suffice. We are not
required to accept conclusory allegations as true. The complaint does not
explain how the statute is unreasonable or unjust or unfair in light of the
government’s stated purpose to provide quality education while adapting to
local needs and desires.
What parents have alleged here is not enough
to state a claim for a violation of the Education Clause or Common Benefits
Clause of the Vermont Constitution.
Affirmed.
"The common law is an active,
not a static,
flow of ideas and principles,
a living stream, constrained by policy and precedent within this branch,
and by the supervening guides of constitution and statute."
Frederic W. Allen (Chief Justice 1984-1997)