Monday, July 26, 2021

SCOVT 2021 Short Summaries

SCOVT 2021 SUMMARIES © 2021 Allan R. Keyes, Esq., all rights reserved

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VERMONT CONSTITUTIONAL LAW

Right to bear arms.

State v. Misch2021 VT 10 (Vermont's ban on large-capacity magazines does not violate the right to bear arms under Chapter I, Article 16 of the Vermont Constitution)

 

VERMONT CONSTITUTIONAL LAW

Certified questions

Vermont Federation of Sportsmen's Clubs v. Birmingham2021 VT 11 (Vermont's ban on large-capacity magazines does not violate Chapter I, Article 16 of the Vermont Constitution)

 

APPEALS

Certified Questions.

Michael v. French, Vt. Supreme Court, 2021 (mem) (Declines certified question from federal court in case about public tuition to Catholic schools as abstract and not necessarily determinative of the pending litigation.)

 

APPEALS.

Certified Questions.

Jurisdiction.Workers Compensation.

Zebic v. Rhino Foods, Inc.,2021 VT 35 (DIVIDED COURT dismisses for lack of jurisdiction appeal from refusal of commissioner to certify  proposed  question in separate appeal  to the superior court. )

 

APPEALS

Administrative procedure.

Timeliness of appeals after denial of motion to reconsider agency ruling  In re Appeal Of LP (Mem.) (REVERSES denial of petition to expunge name from child protection registry, holding appeal more than 30 days after judgment was timely because the tolling provision of V.R.A.P 4 for Rule 59 motions applies by analogy to motions to reopen agency rulings even though   V.R.C.P does not apply.)

 

ATTORNEY DISCIPLINE

 In re Bowen,2021 VT 7 (Attorney suspended for 3-months for disclosing facts related to representation that were matters of public record )[ARKnote: Confidentiality isn’t the issue. The rule prohibits talking about the client,]

 

ATTORNEY DISCIPLINE

In re Carris, 2021 VT 32 (interim suspension of law license for lack of responsiveness to clients inconsistent with Rule 1.3 of the Vermont Rules of Professional Conduct,)

 

ATTORNEYS

Who owns the file?

Aguiar v. Williams2021 VT 8 (DIVIDED COURT REVERSES (in part) order in favor of attorney in dispute over file; holding client is entitled to original; entire file not just a copy, with narrow exceptions, should be turned over to the client upon termination of representation if requested.)

 

ADMINISTRATIVE LAW/PROCEDURE

When can agency waive its own procedural rules?

In re Champlain Parkway SW Discharge Permit, 2021 VT 34 (Affirms summary judgment holding that, in granting discharge permit, the agency lawfully waived a filing deadline in its own stormwater regulations.)

 

CIVIL PROCEDURE

Rule 12(c) motion,  standard of review; relation to Rule 56

HIGHWAYS

MANDAMUS

PROMMISSORY ESOPPETL

ISLAND INDUSTRIAL, LLC v. TOWN OF GRAND ISLE, 2021 VT 49 (Affirms judgment on the pleadings, despite argument that earlier summary judgment motion should take precedence. Holding the complaint failed to allege sufficient facts to demonstrate that the selectboard unequivocally intended to accept road  as a public road and that, because another remedy is available plaintiff is not entitled to mandamus relief based on a promissory-estoppel theory. )

 

CIVIL PROCEDURE

APPEALS.

TORTS.

Preserving error under Rule 50 & Rule 56.

Comparative negligence. Municipal immunity for punitive damages.

Blondin v. Milton Town School District, 2021 VT 2  (Affirms judgment against school for negligent supervision because school failed to preserve no-duty issue: denial of summary judgment is not appealable and defendant did not renew Rule 50 motion post-verdict) -- ( trial court correctly refused to reduce jury award by % of comparative negligence found, because jury (silently ) already performed the calculation.)-- (on cross appeal affirms ruling that punitive damages are not available against a school district)

CIVIL PROCEDURE

Rule 12 (B)(6)

FIDUCIARY DUTY.

Baldauf v. Vermont State Treasurer, 2021 VT 29 (DIVIDED COURT affirms Rule 12 dismissal of complaint against the Vermont State Treasurer and the Vermont State Employees' Retirement System alleging breach of contract, breach of fiduciary duty, and negligent misrepresentation claims)

 

CIVIL PROCEDURE

CLAIM PRECLUSION.

Demarest v. Town of Underhill2021 VT 14  (Affirms on grounds of claim preclusion summary judgment denying request for highway access to a new subdivision  --  the same evidence would support both current and prior claim)

 

CONTRACTS.

Arbitration – writing required.

Knaresborough Enterprises, LTD v. Dizazzo,  2021 VT 1 (REVERSES order that requires the parties to submit future disagreements to binding arbitration, without written agreement.)

CONTRACTS.

Arbitration without written acknowledgement.

Federal Preemption.

MacKENZIE v. Luck,

2021 VT 9 (DIVIDED COURT affirms order confirming arbitration award; holding the parties' contract affects interstate commerce, and  is therefore governed by the Federal Arbitration Act (FAA) and is not subject to the more exacting notice and acknowledgment requirement of the VAA.)

 

CONTRACTS.

Mediation—writing required.

Wark v. Zucker

2021 VT 37 (Divided? Court (REVERSES summary judgment imposing attorney fees for refusal to mediate, holding a purchase and sale agreement with unsigned addendum was not an enforceable contract and created no legal obligation for to mediate)

 

DEBTOR AND CREDITOR

Geraw v. Geraw,

2021 VT 45 (Affirms ruling that assets purchased with workers compensation funds are not exempt from collection.)

 

EMPLOYMENT

Summary judgment

Pettersen v. Monaghan Safar Ducham PLLC

2021 VT 16 (Affirms summary judgment for employer in wrongful termination case)

 

ENVIRONMENTAL

Conditional Use

In re JSCL

2021 VT 22 (REVERSES and remands grant of conditional use application for reconsideration of nighttime noise impacts.)

ENVIRONMENTAL

In re Petition of Acorn Energy Solar 2, LLC, 2021 VT 3 (Affirms CPG for solar net-metering project)

ENVIRONMENTAL.

Standing. Intervention.

In Re Snowstone Llc Stormwater Discharge Authorization,2021 VT 36 (REVERSES dismissal of neighbors' appeal and dismissal of the motion for a site visit, holding neighbors have standing; affirms decision to grant landowners intervention.)

    

 

GIFTS

Joint Ownership --Motor Vehicle Titles

IN RE ESTATE OF GEORGE

2021 VT 12 (Affirms ruling vehicle was properly included in estate;  changing registration to reflect joint ownership was insufficient evidence that decedent transferred interest in vehicle.)

 

PROBATE

Guardianship

In re Guardianship of A.S. (Affirms denial of request to join State as party to guardianship)

PUBLIC RECORDS

US Right to Know v. University Of Vermont

2021 VT 33 (DIVIDED COURT affirms ruling those emails sent between UVM professor and third parties are not public records)

 

PUBLIC UTILITY

In Re Investigation to Review The Avoided Costs That Serve As Prices For The Standard-Offer Program In 2020

2021 VT 28 (Affirms PUC rejection of challenge to pricing decision)

 

PUBLIC UTILITY

in Re Petition of Chelsea Solar LLC

2021 VT 27 (Affirms PUC intervention order and approval of CPG for solar project.)

 

ROAD MAINTENENCE

What is a “Ratable” share of maintenance expense?

Moyers v. Poon

2021 VT 46 (REVERSES for dismissal of claim for “ratable” contribution to road maintenance costs more factfinding needed)

 

STATUTE OF LIMITATIONS

TAX DEEDS

Billewicz v. Town of Fair Haven

2021 VT 20 (Affirms summary judgment based on running of at 32 V.S.A. § 5294(4), the one-year statute of limitations for claims challenging the validity of a tax collector’s acts.)

 

STATUTES

Retroactivity.

Workers’ compensation.

Appeals; preservation.

West v. North Branch Fire District# 1

2021 VT 44 (REVERSES decision of the Commissioner of the Vermont Department of Labor concluding that the 2014 amendment to 21 V.S.A. § 644(a)(6) defining compensable injuries to the skull does not apply retroactively; also holding claimant did not waive right to appeal legal issue be moving for summary judgment in favor of opponent so that he could appeal the earlier retroactivity )

 

STATUTES

When “or” means “and”!

State v. Turner,

2021 VT 30 (Affirms order denying expungement of prior convictions.  “Or” in expungement statute means “and” --so that expungement is available only when the underlying conduct is both no longer prohibited by law and no longer designated as a criminal offense)

 

TAXATION

INTERVENTION

Marjorie W. Johnston v. City of Rutland (Affirms dental of request to intervene in tax appeal)

TORTS.

PREMISES LIABILITY recreational use statute. Nonprofit officer and director immunity.

Summary judgment

Gross negligence

 

 

Crogan v. Pine Bluff Estates

2021 VT 42 (REVERSES summary judgment determination that the Recreational Use Statute is applicable in this case to bar injury claims against to non-individual defendants, holding the undisputed record plainly demonstrates that the subject property was not open to the public; affirms summary judgment as to the individual defendants, holding that the record does not support a claim of gross negligence. as a matter of law)

 

RELIEF FROM ABUSE

Forrett v. Stone

2021 VT 17 (REVERSES and remands relief from abuse order.)

 

STALKING

Anthony D. Smith v. Edwin Mortensen (Affirms denial of stalking order.)

FAMILY

Arielle Tarbell v. Benjamin C. Tarbell (Affirms relief from abuse order.)

FAMILY

Baron v. McGinty,

2021 VT 6 (REMANDS petition to modify a Virginia child-support order for decision on merits.)

 

FAMILY

Grandparents sue in wrong forum re grandchildren found in need of supervision)

IN re appeal of T.O.

2021 VT 41 (Affirms order of the Human Services Board concluding that the Board lacked jurisdiction to determine whether DCF failed to comply with certain provisions of state and federal law concerning the care of children by relatives.)

 

FAMILY

termination of parental rights

IN RE KS

2021 VT 51 (Affirms denial of  mother's motions for an extension of time to file a notice of appeal and to vacate the order terminating her parental rights holding it was harmless error to deny rights under the  the Indian Child Welfare )

FAMILY

termination of parental rights.

In re H.R, K.R., J.R., Juveniles (Affirms termination of parental rights)

FAMILY

termination of parental rights.

In re I.B. & I.B., Juveniles (Affirms termination of parental rights)

FAMILY

Kirstin L. Parro v. Christopher R. Parro (Affirms post- divorce enforcement order)

FAMILY

Geri Barrows v. Corey Barrows (Affirms denial of motion to enforce divorce decree)

FAMILY

Holly Thurber v. Douglas Thurber (REVERSES divorce order related to property division and maintenance)

FAMILY

termination of parental rights. VRCP 60

in re CLS

2021 VT 25 (DIVIDED COURT affirms denial of a motion, as untimely, to vacate the termination of parental rights.)

 

CRIMINAL.  Timeliness of sentence reconsideration

State v. Stearns,

2021 VT 48. (REVERSES dismissal of motion for sentence reconsideration, holding motion can be made not only within 90 days of affirmance of conviction but also of dismissal of appeal)

 

CRIMINAL

State v. Hale,

2021 VT 18 (DIVIDED COURT affirms sufficiency of the evidence of intent to use brass knuckles.)

 

CRIMINAL

Murder

State v.  Bourgoin,

2021 VT 15 (Affirms second-degree murder convictions arising from wrong-way crash on interstate, rejecting arguments that  the State failed to prove the required intent and the trial court erred in admitting undisclosed testimony and in curative instruction directing the jury to disregard the evidence. )

 

CRIMINAL

Expert Evidence of child abuse

State v. Noyes

2021 VT 50 (DIVIDED COURT affirms conviction of sexual assault of a minor based on expert testimony that perpetrators of child  abuse tend not to injure victims)

 

CRIMINAL

Baill

State v. Nicolelus Sanborn (Single justice de novo denial of bail)

CRIMINAL

Bail

State v. Blodgett

2021 VT 47 (3-Judge court affirms denial of bail, rejecting argument that delay in trial due to suspension of jury trials is unconstitutional)

 

CRIMINAL

Bail

State v. Boyer

2021 VT 19 (Affirms denial of bail. Not an abuse of discretion)

 

CRIMINAL

Bail

State v. Lafayette

2021 VT 38 (3-Judge court affirms denial of bail)

 

CRIMINAL

Bail

State v. Reginald Book

2021 VT 31 (3-judge Court affirms denial of bail.)

 

CRIMINAL

Home Detention

State v. LESAGE

2021 VT 26 (3-Judge Court affirms denial of home detention)

 

CRIMINAL

State v. Christopher Ferraro (Affirms assault conviction)

HABEAS CORPUS

Frank Fellows v. Attorney General & Department of Corrections (Affirms denial of habeas corpus)

CRIMINAL PROCEDURE

In re Lewis

2021 VT 24 (Affirms summary judgment denying PCR, holding guilty plea to habitual-offender enhancement waived  collateral challenge the predicate conviction.)

CRIMINAL

State v. LaFaso

2021 VT 4 (     )

 

CRIMINAL

State v. Lambert

2021 VT 2 (     )

 

CRIMINAL

State v. Richards

2021 VT 40 (     )

 

CRIMINAL

State v. Bruyette

2021 VT 43  (     )

 

CRIMINAL

State v. Spencer,

2021 VT 5 (     )

 

Scott v. State

2021 VT 39 (     )

 

State v. Blanchard

2021 VT 13 (  )

 

 

 

 

 

 

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