Juror misconduct. New trial ordered for Somali Bantu immigrant convicted of sexual assault on a child, because a juror might have been influenced by information about Somali culture he found on the Internet.

State v. Abdi, 2012 VT 4 (Johnson, J.)


Following a jury trial, defendant—a Somali Bantu immigrant to Vermont—was convicted of one count of aggravated sexual assault on a child. He moved for a new trial based, in part, on a claim of jury misconduct resulting from a juror’s acquisition of information on the internet concerning Somali culture, a subject that played a significant role at trial. The trial court held a hearing, questioned the jurors, and issued a written decision denying the motion. The court concluded that although the extraneous information had the capacity to affect the jury’s verdict, it was harmless. We conclude otherwise, and therefore reverse the judgment and remand for a new trial.


We have evolved a “two-part inquiry” in cases of claimed exposure to “extraneous prejudicial information.”  A defendant alleging extraneous influence must first demonstrate that an irregularity occurred and that it had the capacity to affect the jury’s result. Once this is shown, the State must demonstrate beyond a reasonable doubt that the irregularity did not in fact prejudice the jurors against defendant.


Jurors may testify to the factual circumstances surrounding their exposure to extraneous information, but not to whether the information influenced their verdict.  Rule 606(b) permits a juror to testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, whether any outside influence was improperly brought to bear upon any juror, and whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors. 


Accordingly,  because of Rule 606(b), the inquiry is strictly objective in nature, looking to the totality of the surrounding facts and circumstances to determine whether the extraneous information acquired by the jury had the capacity to influence the verdict, and, if so, whether we may nevertheless confidently conclude that it could not have prejudiced the result.


The the State does not challenge on appeal the trial court’s findings that an irregularity in the form of the unidentified juror’s internet “research” on Somali religion and culture was brought up by the juror during deliberations. The question in this case resolves to whether the trial court correctly concluded that the State had met its heavy burden of proving the information was not prejudicial.


The record demonstrates that Somali Bantu religion and culture lay at the heart of this case, and it is simply impossible to conclude that outside information used by at least one juror—as the trial court found—to “interpret the testimony of the Somali witnesses and to determine the credibility of these witnesses” could have had no impact on the verdict. Whatever the merits of the trial court’s finding that the evidence of guilt “was strong,” it cannot be separated from the fact that the verdict turned exclusively on the jury’s credibility assessment of the testimony at trial. Accordingly, we conclude that the judgment must be reversed, and the matter remanded for a new trial before an impartial jury.

Partition. A party who ousts a co-tenant and must account for rental value is entitled to compensation for half of the maintenance costs paid for the entire period, even after ouster.

 Whippie v. O'Connor, 2011 VT 97 (mem.)

This is defendant's second appeal in a partition action brought by his former girlfriend to resolve the parties' respective interests in a house they hold as tenants-in-common. On remand following the first appeal, the trial court determined that defendant had ousted plaintiff from their property and was therefore not entitled to compensation for costs of maintenance of the property during the ouster period. Defendant argues that the court erred in failing to properly account for plaintiff's failure to pay towards maintenance of the property during the ouster period. We agree, and reverse and remand.

Our law on joint tenancies, 27 V.S.A. § 2(b)(2)(A), establishes a statutory presumption that joint tenants will share equally. Therefore a cotenant who pays necessary maintenance costs associated with jointly owned property is entitled to a setoff for the other tenant's portion of those costs.  The great weight of authority is that ousted tenants are entitled to the reasonable rental value of their portion of the property only if they are also responsible for "their share of the necessary property maintenance expenses after ouster.  Such a rule comports with the equitable nature of a partition action and encourages responsible use by the occupying tenant.  It is reasonable that ousted tenants remain obligated to contribute to maintenance costs because these are required to preserve the property, which is in the interest of all tenants.  Thus, we conclude that defendant was entitled to compensation for half of the maintenance costs he paid for the entire period, even after the ouster.

Stare Decisis. Two-year old decision overruled because it mistakenly departed from a general rule adopted in a 1940 case not cited.

Whippie v. O'Connor, 2011 VT 97 (mem.)

 This is defendant's second appeal in a partition action brought by his former girlfriend to resolve the parties' respective interests in a house they hold as tenants-in-common. On remand following the first appeal, the trial court determined that defendant had ousted plaintiff from their property and was therefore, under Massey v. Hrostek, 2009 VT 70 (Reiber, C.J.), is not entitled to a credit for costs of maintenance of the property during the ouster period. We overrule Massey, and reverse and remand.

Our law on joint tenancies, 27 V.S.A. § 2(b)(2)(A), establishes a statutory presumption that joint tenants will share equally. In Massey  we stated that "the cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is not entitled to credit for costs incurred, for either maintenance or improvements, during the period of the ouster." 2009 VT 70, ¶ 25. We acknowledge that Massey is a recent decision and that we do not "lightly overturn recent precedent,” O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.), but this statement of the law in Massey is incorrect and the error should not be perpetuated.

 To the extent that this statement precludes a tenant in possession from claiming contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, it is overruled.

•  The statement was contrary to prior Vermont law, which followed a "general rule" that "when a tenant who has ousted his co-tenants is charged with rents or profits he should be credited with payments on encumbrances, taxes, insurance and repairs." Richardson v. Richardson, 111 Vt. 140, 149-50, 11 A.2d 227, 231 (1940).
• The great weight of modern authority agrees with Richardson that an ousted tenant is entitled to the reasonable rental value of their portion of the property only if is they remain responsible for "their share of the necessary property maintenance expenses after ouster." 
•  Massey did not explicitly overrule Richardson,
•  Massey did not discuss why a change in the general rule was necessary or prudent from a public policy perspective.
•  Other than Massey plaintiff cites no law in support of her position
•   The case cited by Massey does not support its conclusion, because in the cited case the ousted tenant did not receive the rental value.
•    Plaintiff’s position is inequitable in that she claims a double benefit of ouster—half the rental value plus no contribution for the maintenance costs of the property.
•  It is reasonable that ousted tenants remain obligated to contribute to maintenance costs because these are required to preserve the property, which is in the interest of all tenants. 

Thus, we conclude that defendant was entitled to compensation for half of the maintenance costs he paid for the entire period, even after the ouster.

Appeals. Day-late appeal dismissed. Fax is not effective method for filing notice of appeal.

Crocker v. Crocker, 2011 VT 82 (mem.)

A notice of appeal must be filed in the superior court within thirty days of the date of the entry of judgment or order appealed from. V.R.A.P. 4(a). Here the notice of appeal needed to be filed by June 13, 2011. A facsimile copy of the notice of appeal was received on June 13, but this is not an appropriate method for filing the notice of appeal. V.R.C.P. 5(e) (listing means by which filing may be accomplished to include delivery or sending by first-class mail or commercial carrier). The original notice of appeal was not received by mail until June 14, 2011, one day beyond the deadline. Therefore, the appeal is dismissed.

Insurance: medical malpractice by insured was not covered as concurrent cause, independent of excluded sexual misconduct.

ProSelect Insurance Co. v. Levy, 2011 VT 109 (mem.)

 ProSelect Insurance Company filed this declaratory relief action to determine its duty to indemnify its insured in a lawsuit alleging medical malpractice and sexual assault.   On summary judgment, the trial court construed a policy exclusion to bar coverage and entered judgment in favor of ProSelect.  Plaintiff in the underlying suit appeals from the judgment, asserting that the malpractice claims are covered under the concurrent causation doctrine. We affirm.

The trial court relied on a policy exclusion for “any damages, incidents, claims or suits . . . [w]hich, in whole or in part, arise out of or contain any allegations of any of … [s]exual intimacy, . . . exploitation, assault or undue familiarity.” (emphasis added.)

 Plaintiff relies on the “concurrent causation” doctrine and contends her malpractice claims are “wholly independent” of the sexual assault allegation. Under this doctrine, “coverage may not be denied merely because a separate excluded risk was an additional cause of the accident provided that the conduct on which coverage is premised is “somehow independent of the conduct excluded from the policy.”    State Farm Mutual Automobile Insurance Co. v. Roberts, 166 Vt. 452, 459, 463 697 A.2d 667, 671, 673-74.  (1997). Plaintiff alleged that the insured  negligently failed to properly diagnose her psychological disorder, prescribed harmful medications, encouraged her to pursue “unhealthy lifestyle choices,” failed to refer her to a community-based mental health program, and engaged in treatment “at variance with accepted professional protocols.”  In a separate count, plaintiff alleged that, “[i]n the course of . . .  treatment,” the insured doctor had committed sexual assault and battery. 

The short answer to plaintiff’s reliance on the concurrent causation doctrine is that it is misplaced.  Thee unambiguous policy language plainly excludes coverage where, as here, the claimant’s suit contains an allegation of sexual misconduct. 

In any event, we are not dealing here with independent and unrelated claims of non-sexual misconduct otherwise covered under the policy. This is a case where all of the claims essentially derive from the noncovered allegation of sexual misconduct. The evidence shows the insured doctor was intent on isolating plaintiff from other health care providers in order to preserve their improper sexual relationship, and that all alleged deviations from accepted medical norms were all designed to accomplish this end.  Thus, the malpractice and assault claims cannot be viewed as separate or independent causes.

Act 250. Administrative amendments do not apply where full review required.

In re SP Land Co., LLC,  2011 VT 104 (Johnson, J.) (Reiber, C.J., dissenting.)

 This appeal arises out of a dispute over an administrative amendment to the master development plan for Killington Resort Village.  The Environmental Commission originally granted this administrative amendment pursuant to Act 250 Rule 34(D).  Mountainside Properties, LLC, an adjoining property owner, appeals the Environmental Court’s denial of its motion to alter and amend a grant of summary judgment in favor of co-applicants.  Mountainside argues that the Environmental Court erred because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants’ fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. § 6086(a), as required by 10 V.S.A. § 6081(a).  We agree and therefore reverse.

The  issue of whether a Rule 34(D) administrative amendment may be used to authorize a fifteen-lot subdivision absent positive findings on all Act 250 criteria is at the core of this case.  Rule 34(D) states:

  A district commission may authorize a district coordinator to amend a permit without notice or hearing when an amendment is necessary for record-keeping purposes or to provide authorization for minor revisions to permitted projects raising no likelihood of impacts under the criteria of the Act. 

We hold that Rule 34(D) applies solely to the Act 250 land use permit issued after full substantive review of all ten statutory criteria under 10 V.S.A. § 6086(a) and cannot apply to findings of fact and conclusions of law on fewer than all of the Act 250 criteria for a master plan. The statute makes clear that the Legislature intended full review under all Act 250 criteria and subcriteria for just this kind of substantial subdivision.

Reiber, C.J., dissents on procedural grounds without necessarily disagreeing with the majority’s holding that an administrative amendment under Act 250 Rule 34 may be inappropriate where, as here, a master plan application does not result in affirmative findings on all of the Act 250 criteria and a master plan permit.  The Chief Justice emphasizes, however, that under the Master Permit Policy and Procedure a fully approved master plan application may well support a later administrative amendment where it would not materially affect any Act 250 criteria le=} � o : @| X�t :p>

Reiber, C.J., dissents because the issue the majority decides was not raised below in a timely and proper manner and therefore should not be reviewable on appeal. The question it addresses—whether an administrative amendment under Rule 34 requires an underlying Act 250 permit—was not raised with the trial court before the entry of judgment but only later in a Rule 59(e) motion to alter or amend.  

Reconsideration. Denial of Rule 59 motion to amend judgment reversed on question of law intrinsic to, but not raised before judgment.

In re SP Land Co., LLC, 2011Vt 104 (Johnson, J.) (Reiber, C.J., dissenting.)

 Mountainside Properties, LLC, an adjoining property owner, appeals the Environmental Court’s denial of its motion to alter and amend a grant of summary judgment in favor of co-applicants.  We reverse.

The goal of Rule 59(e) is to “make clear that the [trial] court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.” 

Rule 59(e) “gives the court broad power to alter or amend a judgment.”  Reporter’s Notes, V.R.C.P. 59.  We have stated that Rule 59(e), is “invoked ‘to support reconsideration of matters properly encompassed in a decision on the merits.’ ”   Under this rule, “the court may reconsider issues previously before it, and generally may examine the correctness of the judgment itself.”  That is, Rule 59(e) “codified the trial court’s inherent power to open and correct, modify, or vacate its judgments.”   See 11 C. Wright et al., Federal Practice and Procedure § 2810.1, at 124-25 (2d ed. 1995) (describing correction of manifest error of law upon which judgment is based as one of four basic grounds upon which Federal Rule of Civil Procedure 59(e) motion may be granted).  The trial court enjoys considerable discretion in deciding whether to grant such a motion to amend or alter.  11 Wright, supra, §2810.1, at 124. Indeed, we have held that the court’s power on a Rule 59(e) motion even extends to issues not raised in the motion. Once a Rule 59(e) motion is filed, the trial court has the power to make an appropriate modification or amendment, including issues not raised in the Rule 59(e) motion.

Whether or not the Rule 34 issue was expressed for the first time in Mountainside’s Rule 59(e) motion, it was a question of law intrinsic to the Environmental Court’s summary judgment ruling and therefore well within the court’s discretion to reconsider this question of law on the merits upon on Mountainside’s Rule 59(e) motion. 

Reiber, C.J., dissents because the issue the majority decides was not raised below in a timely and proper manner and therefore should not be reviewable on appeal. The question it addresses—whether an administrative amendment under Rule 34 requires an underlying Act 250 permit—was not raised with the trial court before the entry of judgment but only later in a Rule 59(e) motion to alter or amend.  

Jury selection. Denial of peremptory challenge of black juror, without showing of bad motive, was reversible error per se.

State v. Bol , 2011 VT 99 (Burgess, J.)  

Defendant  appeals from his conviction for giving false information to a police officer and possession of cocaine.  He argues that the trial court erred by preventing his counsel from using a peremptory challenge to strike a black member of the jury pool.  He claims that this error should result in a new trial.  We agree and reverse and remand.

 Today’s holding is narrow: the sole fact that a party moves to strike the only minority juror from the venire is insufficient, by itself, to establish a prima facie case of discriminatory motive.  Even a single additional circumstance could, in a different case, suffice to trigger a legitimate Batson inquiry.  Absent from the instant case was anything additionally noted by the trial court, such as counsel’s tone, demeanor, pattern, past conduct, or other surrounding circumstance, suggestive of a discriminatory motivation behind the peremptory challenge. 

It is settled Vermont law that when a defendant is left with an undesired juror after exhausting his peremptory challenges in response to the trial court’s failure to remove a juror properly challenged for cause, the court’s error is reversible error.   Reversal applies even in the absence of prejudice.   The situation is somewhat askew in the instant case where defendant was not wrongly required to exhaust his peremptory challenges, but was still compelled to abide a juror not to his liking when, but for the court’s error, the juror should have been excused. 

We have long treated the peremptory opportunity to strike some jurors without explanation as a “right essential to the full enjoyment of a respondent’s right to a jury trial” and, accordingly, reverse and remand for retrial when that right is wrongfully denied.   The State posits no reason for a different result here. 

Family law. Revocable trust is not marital property but can be considered in dividing marital property.

Billings v. Billings, 2011 VT 116 (Dooley, J.) (Reiber, C.J., concurring and dissenting.)

Wife appeals from final judgment in this divorce proceeding, arguing that the family court abused its discretion by granting husband’s motion in limine excluding evidence of any revocable trusts or wills under which he may be a beneficiary.  We reverse and remand.

We agree with husband that any interest he has as beneficiary under a will or revocable trust is not marital property if the testator or settlor is still alive.  Under 15 V.S.A. § 751(a), “[a]ll property owned by either or both of the parties, however and whenever acquired, shall be subject to the jurisdiction of the court.  Title to the property, whether in the names of the husband, the wife, both parties, or a nominee, shall be immaterial . . . .”  Although we have not addressed the issue, the near unanimous holdings around the country are that a beneficiary’s interest under a will is only an expectancy that is not subject to the jurisdiction of the family court.  Thus the family court determined correctly that any revocable trusts or wills under which husband may be a beneficiary are not marital property to be distributed by the court.

We agree, however, with wife that such a beneficial interest can be considered in allocating marital property between the parties if it creates an “opportunity . . . for future acquisition of capital assets and income” under 15 V.S.A. § 751(b)(8). We conclude that consideration of likely receipt of future inheritances and trust assets or proceeds may be considered under § 751(b)(8).  The fact that the beneficiary interest is merely an expectancy during the life of the testator or settlor prevents that interest from being marital property but does not prevent it from being considered under § 751(b)(8).  Indeed, because a property distribution cannot be modified where a change of circumstances occurs, it is necessary to have a grasp of predicted future circumstances to bring about a fair result.  Depending upon the circumstances, the court can find that future receipt is likely—that is, it creates a real opportunity to acquire assets in the future.  We conclude that the family court improperly granted the motion in limine that preemptively excluded evidence about the extent of husband’s potential interest in revocable trusts and wills.

Reiber, C.J., concurring and dissenting, agrees with the majority’s holding that a beneficial interest in a revocable trust is a mere “expectancy” that must be excluded from the marital estate, but disagrees with its corollary holding that such an “expectancy” may be considered in dividing the marital property.   It is precisely the permanent nature of a property award that dictates against the consideration of such inherently speculative interests as revocable trusts, which turn entirely on circumstances beyond the party’s control and may never eventuate. To predicate a division of marital property upon an interest “revocable at the will of the settlor, at any time and for any reason,” is no more fair or reasonable than attempting to apportion that interest. 

Insurance. Environmental Cleanup: time- on-risk allocation upheld.

Bradford Oil Co., v. Stonington Insurance Co., 2011 VT 108 (Dooley, J. )

This case considers who should bear responsibility for the cost of cleaning up petroleum contamination caused by releases from a gas station’s underground storage tanks.  The controversy in this appeal is between the State of Vermont, which runs the Vermont Petroleum Cleanup Fund (VPCF) and Stonington Insurance Co. (Stonington), which insured Bradford Oil, the owner of the underground storage tanks, for approximately a three-and-a-half-year period.  The State appeals from the trial court’s judgment limiting Stonington’s liability to a 4/27 share of past and future cleanup costs.  On appeal, the State argues: (1) this Court’s application of time-on-the-risk allocation in Towns v. Northern Security Insurance Co., 2008 VT 98, 184 Vt. 322, 964 A.2d 1150, does not preclude joint and several liability under all standard occurrence-based policy language; (2) the circumstances here, including the reasonable expectations of the insured and the equity and policy considerations, support imposing joint and several liability on Stonington for all of the State’s VPCF expenditures; and (3) even if time-on-the-risk allocation would otherwise be appropriate, Stonington is not entitled to such allocation because it has failed to show sufficient facts to apply this allocation method in the present case. 

We conclude that Towns does control here, and we are unconvinced by the State’s reasonable expectations, equity, and policy arguments to distinguish this recent decision.  Accordingly, we affirm. 

Arbitration: assignee of arbitration agreement has no right to arbitrate its own, pre-assignment conduct

Porter v. AT&T Mobility, LLC, 2011 VT 112 (mem.)

 Defendant AT&T appeals the trial court’s denial of its motion to compel arbitration.  AT&T claims the trial court erred by ruling that AT&T had not been assigned plaintiff Pike Porter’s cell phone contract before sending him unsolicited text messages and erred in failing to hold an evidentiary hearing on this issue.  AT&T also argues that even if Porter’s claims arose before AT&T purchased his contract; the trial court erred as a matter of law in holding that AT&T cannot enforce the binding arbitration agreement in Porter’s original cell phone contract.  We affirm. 

AT&T claims that as an “assignee” or “successor” of Unicel, a party to the original contract, it has the right to elect to arbitrate a claim, even one arising out of conduct it may have undertaken before it was assigned the contract, because such a claim involves a “prior dealing.” The key provision of the contract states that claims “arising out of . . . any prior or future dealings between you and us [may be] resolved by binding arbitration.”  While AT&T, as Unicel’s assignee and successor, certainly took “whatever interest the assignor possessed” when it assumed Porter’s contract, In re Ambassador Ins. Co., 2008 VT 105, ¶ 19, 184 Vt. 408, 956 A.2d 486, that “interest” did not include the ability to compel arbitration between Porter and AT&T.

Medical malpractice. Psychiatrist who gave a single 90-minute consultation had a doctor-patient relationship and a duty of care, therefore summary judgment on issue of duty was error.

White  v. Harris,  2011 VT 115 (mem.)

  Plaintiffs appeal from a superior court order granting summary judgment to defendant Fletcher Allen Health Care, Inc. in this wrongful death action alleging medical malpractice.  The case arises from the suicide of plaintiffs’ fourteen-year-old daughter.  Plaintiffs sued defendant, which employed a psychiatrist who was briefly involved with decedent’s case through a telepsychiatry research study 10 months before her suicide.  Defendant moved for summary judgment asserting that its doctor had no duty to decedent when she committed suicide because there was no doctor-patient relationship.  Plaintiffs argue that summary judgment was improperly granted on the issue of the duty owed to decedent by the psychiatrist.  We agree, and thus reverse and remand for additional proceedings. 

The psychiatrist had no interaction with plaintiffs’ decedent or any member of her treatment team after a single, ninety-minute video-conference session with the psychiatrist in August 2006.  Following the session, the psychiatrist provided a diagnostic impression of decedent and set forth recommendations for an initial treatment plan that no follow-up services would be provided, and no medication prescriptions would be directly provided by the doctor.   On June 10, 2007, decedent committed suicide.  . 

We hold that the ninety-minute consultation performed in this case created a doctor-patient relationship.  We acknowledge that the telepsychiatry research study conducted by the doctor provided no treatment component directly to decedent, other than recommendations to her treatment team.  However, through this consultation, a limited doctor-patient relationship was established and we conclude that a duty of due care applies.  Through this consultation, defendant’s doctor assumed a duty to act in a manner consistent with the applicable standard of care so as not to harm decedent through the consultation services provided.   We also hold that even if the doctor-patient contact had ended, this does not terminate the doctor’s responsibility for the consequences of any lapses in his duty to provide services consistent with the applicable standard of care for the consultation. The doctor had a duty of due care in his professional contact with decedent, which was not extinguished by any formal written act of termination of their professional relationship. 

Because of the procedural posture of this case the scope of defendant’s duty and the standard of care cannot yet be determined.  In evaluating the standard of care, we must not conflate the existence of a duty with the appropriate standard of care, an issue that takes us beyond the limited facts in the record before us and was not raised below. Because a duty applies to the service provided, we reverse and remand for additional proceedings

Denial of tax abatement affirmed on equitable grounds unrelated to value.

Garbitelli v. Town of Brookfield, 2011 VT 122 (Reiber, C.J. )

Taxpayer appeals from a judgment affirming the Town of Brookfield Board of Abatement’s denial of his request for a tax abatement.  We affirm.

The property was assessed at $1.6 million after taxpayer refused entry to the tax assessor. Taxpayer later allowed entry to the listers for 2009, which resulted in an assessment of $957,000.  Taxpayer then moved for a tax abatement for the years 2007 and 2008 under 24 V.S.A. § 1535(a)(4), which authorizes an abatement in cases involving “a manifest error or a mistake of the listers.”   The Board denied the request, finding that there was no mistake attributable to the listers since they were denied entry and were forced to use the best information available to them.

We review the Board’s decision denying abatement for abuse of discretion.  In contrast to the tax assessment process, in an abatement action the Board is not constrained to value properties at fair market value.  In fact, the whole point of tax abatement is to allow the Board to abate taxes for reasons other than that the property was assessed above fair market value.  A taxpayer may argue before the Board that his assessment was so high as to constitute a “manifest error or a mistake of the listers,” 24 V.S.A. § 1535(a)(4), but the statute is entirely permissive and does not require abatement even if the taxpayer falls within one of the categories allowing for abatement.

 In short, tax abatement is an equitable remedy.  Taxpayer engaged in unfair and inequitable conduct by refusing the listers reasonable access to the property.  The Board properly considered taxpayer’s conduct, and we find no abuse of its discretion in denying his abatement request on this ground. 

Municipal attorney did not owe a professional or other fiduciary duty to municipal employee.

Handverger v. City of Winooski, 2011 VT 134 (Burgess, J. )

Plaintiff, the former city manager of Winooski, appeals from the trial court’s summary judgment in favor of the Winooski city attorney.  Plaintiff sued the city attorney, individually, for breach of fiduciary duty in the course of municipal infighting over plaintiff’s performance as manager and the city’s decision to dismiss him.  Plaintiff’s complaint is that the city attorney breached a duty of loyalty by threatening cross-examination at a municipal hearing and by signing a disparaging letter and press release calling for his resignation.   The trial court determined that the city attorney owed plaintiff no fiduciary duty beyond the attorney’s duty to the city.  We affirm.

There was no evidence or finding that the city attorney, implicitly or explicitly, represented plaintiff individually or in any capacity other than as city manager.   Lacking any lawyer-client relationship the city attorney did not owe plaintiff a duty of faithful conduct for the personal benefit of plaintiff.

Nor did a fiduciary duty exist by operation of law due to the parties’ dealings. In Bovee v. Gravel, 174 Vt. 486, 811 A.2d 137 (2002) (mem.), we acknowledged some jurisdictions relax the strict attorney-client privity basis for legal malpractice where injured third parties could show the “client’s purpose in retaining the attorney was to directly benefit a third party.”  174 Vt. at 488, 811 A.2d at 140.  Plaintiff presents nothing approaching such a relationship of privity between himself and the city attorney.  There is no evidence that the attorney was appointed or retained to serve plaintiff’s personal interests.  Nor is there evidence of surrounding circumstances, or interaction between the parties, suggesting a blurring of municipal objectives with plaintiff’s own.

Stare decisis.

State v. Carrolton, 2011 VT 131( Johnson, J. )

The State appeals from an interlocutory order granting defendant’s motion to merge into a single count the two counts of lewd-and-lascivious conduct charged by the State.  Relying on State v. Perillo, 162 Vt. 566, 649 A.2d 566 (1994), which involved facts very similar to this case, the trial court ruled that because the alleged offensive touching occurred continuously without any intervening act over a short period of time, the State could not charge defendant with multiple counts of lewd-and-lascivious conduct.  The State on appeal asks this Court to overrule Perillo and hold that the touching of two distinct intimate parts of the body are two separate offenses as a matter of law.  We decline to overrule Perillo and, accordingly, affirm the trial court’s decision.

The State has not demonstrated that, in the seventeen years since we issued Perillo, our holding has “undermined the public welfare, wrought individual injustice, or impeded the administration of justice.”  DeSantis v. Pegues, 2011 VT 114, ¶ 43 (Johnson, J, concurring).  As we have stated before, this Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.  See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.)  No such showing has been made here.  Accordingly, we decline the State’s invitation to overrule Perillo.

Court has “status” jurisdiction to terminate rights of parent who lacks minimum contacts with Vermont.

In re R.W., 2011 VT 124 (Burgess, J.)

This termination of parental rights case presents novel jurisdictional questions because the parents and children are citizens of Sri Lanka and, although mother and the children have been residents of Vermont for a number of years, father continues to reside in Sri Lanka and has never been to Vermont.  The Department for Children and Families (DCF) petitioned to terminate father’s residual parental rights.  The family division concluded it lacked personal jurisdiction over father.  DCF argues that even though father lacks minimum contacts with Vermont, the court has jurisdiction to adjudicate the status of his children, who were within the court’s jurisdiction.  We reverse the court’s decision as to both parents and remand the cases.

 The critical question in this appeal is whether a child’s relationship to her parents is adjudication exempt from the “‘minimum contacts” test.  “Status cases” are exempt from the United Supreme Court’s jurisprudence that established the minimum contacts test as the basis for jurisdiction for both in personam and in rem case. “[C]cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff’s home State even though the defendant could not be served within that State.”  Shaffer v. Heitner, 433 U.S. 186, 201 (1977) (citing Pennoyer, 95 U.S. at 733-35).  The Supreme Court has not defined status jurisdiction or explicitly recognized its application to any type of case other than divorce. In Vermont, we have applied status jurisdiction in divorce actions, but not to other situations, such as custody. 

We conclude that status jurisdiction applies to cases involving termination of parental rights.  Much like the marriage relationship, severance of a parent’s legal relationship to his or her child requires state intervention and is a matter of state concern.  Thus, a child’s home state has jurisdiction to adjudicate the status of a child present there even if the parents lack minimum contacts with the forum. 

Attorney not liable to non-client for nondisclosure of a matter of opinion during a negotiation, where underlying facts equally available.

Lay v. Pettengill, 2011 VT 127 (Dooley, J.  )

 Plaintiff David M. Lay appeals from an order granting summary judgment to DPS staff attorney Novotny on Lay’s claim of fraudulent nondisclosure. Lay’s claim stems from an internal investigation into his behavior as a state trooper. Lay hired an attorney who negotiated a resolution to the internal charges with attorney Novotny. Lay, alleges attorney Novotny had a duty to inform him during the negotiation process that that she believed Lay’s conduct might give rise to a criminal action, even though there was no discussion or inquiry between the parties’ attorneys about  criminal matters.   As a result of the negotiation, Lay resigned and executed a release in exchange for eight weeks of pay and an agreed-upon process for addressing future employment referral requests.   Following Lay’s resignation, criminal charges were brought. Lay argues that the superior court erred in granting judgment to defendant on his claim of fraudulent nondisclosure.  We affirm.

 “Fraudulent concealment involves concealment of facts by one with knowledge, or the means of knowledge, and a duty to disclose, coupled with an intention to mislead or defraud.”  “[A]s between bargaining adversaries there can ordinarily be no justifiable reliance upon an opinion.  The recipient is not justified in accepting the opinion of a known adversary on the law and is expected to draw his own conclusions or to seek his own independent legal advice.”    “Failing to disclose information is not fraudulent unless one has an affirmative duty to disclose, as in a confidential or fiduciary relationship.” A duty to disclose may arise “from the relations of the parties, such as that of trust or confidence, or superior knowledge or means of knowledge.”   “In arm’s-length transactions,” however, “where facts are equally within the means of knowledge of both parties, neither party is required to speak, in the absence of inquiry respecting such matters.”  In context of fraudulent nondisclosure cases that a “defendant may reasonably expect the plaintiff to make his own investigation, draw his own conclusions and protect himself”)   

As an initial matter, at issue is a subjective opinion, not a statement of fact. Lay knew the facts on which Novotny based her opinion about his potential criminal liability.  He and his attorney had full access to the information and presumably both Lay and his attorney read these materials before engaging in settlement negotiations. Lay and his attorney could have inquired whether a criminal referral had been made. Novotny and Lay were adversaries.   Novotny was representing DPS, and Lay had his own lawyer who was actively involved in the negotiation process.   Each attorney owed a duty of care to her own client, not to third parties

Torts. Troopers undertook a duty of care when doing a “welfare check.”

Kennery v. State of Vermont, 2011 VT 121 (Dooley, J.) 

 The Restatement (Second) of Torts § 324A (1965) provides:

 One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

 (a) his failure to exercise reasonable care increases the risk of such harm, or

 (b) he has undertaken to perform a duty owed by the other to the third person, or

 (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Plaintiff on behalf of the estate of Gladys Kennery, appeals the granting of a motion for summary judgment on plaintiff’s complaint alleging negligence, gross negligence, and civil rights violations against the State of Vermont, certain Vermont State Troopers and the Vermont Department of Public Safety (VDPS).  Plaintiff’s lawsuit stems from a “welfare check”—that is, a check to determine that a person is safe and secure. Gladys’s daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence.  Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter.  Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold.

The superior court held that the State owed no duty of reasonable care in performing the welfare check. We hold that the trial court erred in granting summary judgment to defendants.  Genuine issues of material fact remain as to whether a duty of care was created under the Restatement (Second) of Torts § 324A based upon the State’s undertaking to perform the welfare check and whether the troopers breached that duty such that the State is liable under the Vermont Tort Claims Act (VTCA).  We also hold that the court erred in dismissing plaintiff’s claim of gross negligence against the  Troopers. Accordingly, we reverse and remand.

The threshold question for both plaintiff’s negligence and gross negligence claims is whether the troopers owed Gladys a duty to perform the welfare check with due care.  We agree with plaintiff that he raised a valid claim that the troopers had a common law duty of care under Restatement (Second) of Torts § 324A and that the undisputed facts do not resolve such a claim against him.  The troopers expressly undertook to render the welfare check services to the daughter (the other); they recognized or should have recognized that the welfare check services were necessary for the protection of Gladys (the third person);  they did not exercise reasonable care to protect their undertaking, and either their failure to exercise reasonable care increased the risk of harm because Gladys remained outside overnight (subsection a) or Gladys’s harm was suffered because Lorraine relied upon their representation that they checked the house and Gladys was not there (subsection c).