Wednesday, December 4, 2013

Admission of crash reconstruction testimony affirmed, despite novelty of methods.

State v. Scott, 2013 VT 103 [Filed 18-Oct-2013]

SKOGLUND, J. Defendant appeals his jury conviction for negligent operation of a motor vehicle and the resulting sentence. He asserts that the trial court impermissibly allowed the State’s crash reconstruction expert to testify about defendant’s speed at the time of the collision because other experts in the field believe a drag sled should not be used on wet roads or grass. We affirm.

The accident reconstructionist pulled a drag sled over the road and grass surfaces where the vehicles had traveled. He used a mathematical formula to determine the “drag factor” generated by these surfaces. He incorporated the drag factors, estimated vehicle weights, post-crash travel distances, and braking estimates into other formulas to calculate the momentum required to move the vehicles from the point of impact over those surfaces to their final resting positions. Working backward from these calculations, and accounting for the energy absorbed by the crash, he concluded that defendant had been traveling 61 miles per hour when his truck struck the decedent’s car.

Reliable expert testimony is “sufficiently rooted in scientific knowledge,” that is, grounded in scientific methods and procedures rather than mere “subjective belief or unsupported speculation.” State v. Streich, 163 Vt. 331, 343, 658 A.2d 38, 47 (1995). In assessing whether an expert’s assertion is reliable, a court may be guided by the following factors: (1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; and (4) whether it has been generally accepted by the scientific community. Id. (citing Daubert, 509 U.S. at 593-97). These factors are not exhaustive, and a trial court has “broad discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant in evaluating the reliability of expert evidence” before it. Daewoo, 2008 VT 14, ¶ 8; see also Daubert, 509 U.S. at 589 (rejecting the “general acceptance” test, once the “exclusive test for admitting expert scientific testimony,” as incompatible with the more liberal parameters of Rule 702).

This Court has emphasized in prior cases that “Daubert presents an admissibility standard only.” Id. ¶ 12 (quotation omitted). In fact, we adopted Daubert specifically to promote more liberal admission of expert evidence. Id. (citing State v. Tester, 2009 VT 3, ¶ 18, 185 Vt. 241, 968 A.2d 895); see also Daewoo, 2008 VT 14, ¶ 9 (noting this Court’s intent to “broaden[] the types of expert opinion evidence that could be considered by the jury at trial”). The central purpose of judicial gatekeeping under Rule 702 is to screen out potentially confusing or misleading “junk science” that was “propagated primarily for litigation.” Daewoo, 2008 VT 14, ¶ 8. As noted by the U.S. Supreme Court, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. When faced with questionable scientific evidence, such as that which is “well-grounded but innovative,” id. at 593, a court should focus its Rule 702 inquiry “solely on principles and methodology” and rely on the party opponents to expose the weaknesses of expert conclusions. Id. at 595; see also Burgess, 2010 VT 64, ¶ 12.

The crash reconstruction expert offered a sufficiently reliable foundation for his testimony, and the trial court properly allowed the jury to hear it even though other experts in the field find the particular of methods used inaccurate. Novel use of methods is not misleading “junk science” to be categorically excluded under Rule 702. Instead, this use here qualifies as a well-reasoned but novel application of a traditionally accepted technique.

Monday, December 2, 2013

Consumer Protection. Operator of a web site containing forms with contractual provisions that, if used by third parties at their election, may cause violations of the CFA is not “other violator” liable under CFA because web site operator is not one who directly participates in the unfair or deceptive acts, who directly aids the actor, or who is in a principal/agent relationship with the actor.

 DOOLEY, J.   Plaintiff appeals the decision of the superior court denying her motion for summary judgment and granting defendant Vermont Association of Realtors, Inc.’s (VAR) motion for summary judgment on her consumer fraud claim arising out of her purchase of a home .  Plaintiff argues that the limited liability clause and the mandatory mediation clause of VAR’s form purchase and sale agreement that  was used in her real estate purchase were unfair and deceptive, and that by providing the form contract and representing on its website that the template is fair to all parties, VAR violated the CFA The trial court ruled that the clauses, either alone or in conjunction, were not “unfair or deceptive under the CFA.”  and that “VAR’s sole connection to this case—drafting the template clauses that [plaintiff] and her buyer’s broker eventually used—cannot support a consumer fraud claim” We affirm.

VAR was not involved in the transaction between plaintiff and sellers, nor in the actions of the real estate brokers who represented sellers and plaintiff and brought them to agreement. VAR’s sole involvement was to post on its website a model purchase and sales contract that could be used by member real estate brokers and was used by plaintiff’s real estate broker  Narrowly stated, the first issue in this case is whether, under plaintiff’s allegations, VAR is an “other violator” pursuant to § 2461(b)(permitting a consumer “who sustains damages or injury as a result of any false or fraudulent representations or practices prohibited by section 2453 of this title” to “sue and recover from the seller, solicitor or other violator….”).   

In Sawyer v. Robson, 2006 VT 136, 181 Vt. 216, 915 A.2d 1298, a private CFA suit, we stated “The plain meaning of ‘other violator’ is anyone engaged in an unfair or deceptive commercial practice in violation of the CFA’s prohibition on such activity.”  Id. ¶ 12.  We explained that “our focus in determining applicability of the CFA is the nature of the alleged violator’s activities, not whether the violator falls into a defined statutory category.”  Id.     In State v. Stedman, 149 Vt. 594, 547 A.2d 1333 (1988), a public CFA suit, we  held that derivative liability for consumer fraud could not be imposed “absent direct participation in the unfair or deceptive acts, direct aid to the actor, or a principal/agent relationship.”  Id. at 598, 547 A.2d at 1335-36. In various contexts under comparable statutory schemes, other courts have required some direct involvement for derivative liability to attach under a consumer protection act.

We conclude that the Stedman holding applies both to public CFA suits and to private CFA suits like the one before us.  Thus, VAR cannot be found liable “absent direct participation in the unfair or deceptive acts, direct aid to the actor, or a principal/agent relationship.”  Stedman, 149 Vt. at 598, 547 A.2d at 1335-36. The application of this test in private CFA cases is appropriate because it looks to “the nature of the alleged violator’s activities, not whether the violator falls into a defined statutory category.” Sawyer, 2006 VT 136, ¶ 12.  VAR had no direct involvement in the drafting of the contract used here and did not act as a principal with respect to plaintiff’s broker.  Thus, it may only be held liable if it provided “direct aid” to the broker.  The trial court correctly held that “VAR’s sole connection to this case—drafting the template clauses that [plaintiff] and her buyer’s broker eventually used—cannot support a consumer fraud claim.”  

Friday, November 1, 2013

Mortgage assignment, pooling and servicing agreement; standing. Consumer protection: no standing to sue where alleged deceptive act did not induce purchase, and no showing of injury or damages / declaratory judgment not an available private remedy.


 DOOLEY, J.   Plaintiffs Peter and Nicole Dernier appeal the dismissal for failure to state a claim, of their action for (1) a declaratory judgment that defendant U.S. Bank National Association cannot enforce the mortgage and promissory note for the debt associated with plaintiffs’ purchase of their house based on irregularities and fraud in the transfer of both instruments, (2) a declaration that U.S. Bank has violated Vermont’s Consumer Fraud Act (CFA) by asserting its right to enforce the mortgage and note, and (3) attorney’s fees and costs under the CFA.   We affirm in part and reverse in part.

We hold that plaintiffs do not have standing to challenge the assignments of the note and mortgage based on the perceived violations of the pooling and servicing agreement (PSA) governing the pool into which the mortgage had been assigned, because any such violations would render the assignments voidable rather than void. However the complaint also alleges that the note was fraudulently acquired by defendant, based on a fraudulent endorsement with a forged endorsement signature, that was created by defendant.  These allegations are sufficient to give plaintiffs standing.  The court erred in dismissing Counts 1 and 2 of the amended complaint for lack of standing, to the extent that these counts alleged irregularities in the transfer of the note and mortgage unconnected to the pooling and servicing agreement.

Next, we turn to plaintiffs’ consumer fraud claim.   Here, plaintiffs allege that the violation was based on the letter under which defendant stated its legal position that, as a holder of the note and mortgage, it had the right to enforce. The section of the statute providing for a private right of action is § 2461(b), which requires a “consumer” to show either (1) reliance on a deceptive act in contracting for goods or services or (2) damages or injury from an unfair or deceptive act.  If a plaintiff, in bringing a consumer fraud action, either fails to allege facts that meet the definitions of an unfair or deceptive act under 9 V.S.A. § 2453 or fails to demonstrate the prerequisites to a private action, as we have itemized above under 9 V.S.A. § 2461(b), the case is properly dismissed.    We focus on the prerequisites for a private action under 9 V.S.A. § 2461(b), and find that plaintiffs do not meet these requirements,.  Specifically, we look at the second prong of § 2461(b), because plaintiffs cannot have relied on this letter to contract for goods or services, as it was sent long after the purchase.  Our only question thus becomes: assuming that defendant’s statement regarding its belief that it had the right to enforce the mortgage and note was indeed deceptive, did plaintiffs suffer damages or injury from this act?   Plaintiffs do not offer an explanation as to what injury or damages the letter caused, as they do not address the requirements of § 2461(b) at all.  Indeed, the complaint seeks neither damages nor an injunction, the remedies authorized by § 2461(b).  Instead it seeks a declaratory judgment that defendant “violated Vermont Consumer Fraud Law.”  We read the complaint as seeking a declaratory judgment that defendant violated § 2453, without having to prove entitlement to a private remedy under § 2461(b).     Plaintiffs have not established an injury for the purposes of standing under 9 V.S.A. § 2461(b).  


Affirmed as to dismissal of Counts 3 and 4 of plaintiffs’ proposed amended complaint; Reversed and remanded with respect to dismissal of Counts 1 and 2 of plaintiffs’ proposed amended complaint for further proceedings not inconsistent with this decision

Friday, October 4, 2013

Appeals. Court rules prospectively that CHINS decision is final order that must be immediately appealed, even though disposition hearing is still pending.


Vermont's child abuse and neglect proceedings have a bifurcated nature. See In re L.S., 147 Vt. 36, 38, 509 A.2d 1017, 1019 (1986).   First, there is a merits adjudication during which the State must prove the allegations in the CHINS petition, and the court must find by a preponderance of the evidence whether the child is abused or neglected. See 33 V.S.A. § 5315. Second, there is a disposition hearing, which decides the terms of the child's placement and protection. Id. § 5318(a). In this case, a merits decision was entered on July 25, 2012, a disposition order was entered on October 11, 2012, and Father filed a notice of appeal on November 8, 2011, seeking to appeal both the merits and the disposition orders. The timeliness of father's appeal depends on two questions: whether a CHINS merits decision is a final appealable order and whether failure to appeal that decision within thirty days forecloses the right to later challenge it. We conclude that the merits decision is a final order and that failure to bring an appeal of that order within thirty days bars subsequent challenges to the order. Under the circumstances of this case, however, we apply our decision prospectively and reach the merits of father's appeal.

Generally, the test for finality is whether an order has disposed of all matters before the court by settling the rights of the parties. See In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002); In re Petition No. 152 by Cent. Vt. Ry., Inc., 148 Vt. 177, 178, 530 A.2d 579, 580 (1987). Although a CHINS determination does not permanently resolve the child-neglect proceeding, finality in juvenile proceedings is measured differently from other types of cases.  Because the policy of resolving the child's status as quickly as possible, we hold the merits adjudication is a final appealable order.  In this case, father appealed beyond the thirty-day time frame, and therefore his appeal of the CHINS decision was untimely.

Father argues that this Court has routinely allowed appeals of the merits after disposition, and that he should not be punished for relying on those cases. We recognize that our jurisprudence regarding the appropriate time to appeal CHINS determinations has not been consistent and that the obligation to immediately appeal the decision was not evident. In these circumstances it would be fundamentally unfair to foreclose father from appealing the merits decision where important rights are at stake. See In re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (reaching merits of parent’s untimely appeal of termination order given important rights at stake). We, therefore, apply our decision prospectively only, and reach the merits of father's appeal.

Thursday, August 1, 2013

Rule 75 review of termination of retirement benefits not precluded by “final say” provision of ordinance.

Preston v. Burlington City Reitrement System, 2013 VT 56 (12-Jul-2013)

BURGESS, J. Defendant City of Burlington Retirement System appeals from a superior court judgment reversing the City’s decision to terminate the disability retirement of plaintiff, a former City firefighter. The City contends  the trial court lacked subject matter jurisdiction. We affirm.

Plaintiff appealed the decision to the superior court under Vermont Rule of Civil Procedure 75(a), which provides for review of government action not otherwise expressly appealable by statute under Rule 74, “if such review is otherwise available by law.” The City moved for summary judgment, asserting that the court lacked subject matter jurisdiction, citin a provision in the City’s retirement ordinance to the effect that “[t]he retirement board shall have the final say as to all decisions required to be made pursuant to the provisions of this section.” Burlington Code of Ordinances § 24-23(j) (emphasis added). The court rejected the City’s jurisdictional argument.  The court acknowledged our holding in Mason v. Thetford School Board that a statute may preclude judicial review of an administrative decision by providing that the decision “shall be final.” 142 Vt. 495, 498, 457 A.2d 647, 649 (1983). The court relied, however, on our subsequent ruling in Campbell v. Manchester Board of School Directors, which reaffirmed the principle that “an otherwise final decision may be amenable to review by writ of certiorari . . . where the decision was made by one acting in a judicial or quasi-judicial position.” 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989) (mem.). Because the Board’s decision was quasi-judicial in nature subject to review under the traditional writ of certiorari, the court concluded it was subject to appeal under Rule 75. We agree there was jurisdiction for different reasons.

Our Constitution generally affords “[e]very person within this state . . . a certain remedy, by having recourse to the laws,” Vt. Const. ch. I, art. 4. We thus have cautioned that courts should be “hesitant to interpret arguably ambiguous legislation as foreclosing judicial review of administrative agency decisions.” Vincent v. Vt. State Ret. Bd., 148 Vt. 531, 534 n.2, (1987), We have acknowledged, to be sure, that judicial review of government agency actions may be precluded where a statute or ordinance unequivocally bars review. See, e.g., Handverger v. City of Winooski, 2011 VT 130, ¶¶ 4, 13, ­191 Vt. 556, 38 A.3d 1153 (mem.) (upholding dismissal of Rule 75 complaint by former city manager under charter provision specifically providing that city council’s “action . . . in suspending or removing the manager shall not be subject to review by any court or agency”). No such explicit expression of intent to preclude judicial review is evident here. Although “final” may have broader meaning in other contexts, in this context it is reasonable to expect that, had the City actually intended to deprive its employees of the same opportunity for judicial review enjoyed by other public-sector employees in Vermont, it would have expressed that intent in clear and unmistakable terms. We thus hold that the trial court correctly construed the City’s ordinance to mean that the Board’s decision shall constitute final administrative action, and correctly concluded that it had jurisdiction under Rule 75 to review the Board’s decision terminating plaintiff’s disability retirement.

Zoning. Right to farm. “Farm structure” exemption extends to buildings used to process timber into lumber.

In re Moore Accessory Structure Permit, 2013 VT 54 (19-Jul-2013)

BURGESS, J. Neighbors appeal a decision of the Superior Court, Environmental Division that certain buildings used to process timber into lumber qualify as “farm structures” exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1). We affirm.

24 V.S.A. § 4413(d)(1)-(d)(2) provides that zoning bylaws “shall not regulate . . . the construction of farm structures” and defining the latter to mean a building “for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with . . . farming practices . . . as ‘farming’ is defined in 10 V.S.A. § 6001(22).” A “farm structure” is defined as “a building, enclosure, or fence for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with accepted agricultural or farming practices, including a silo, as ‘farming’ is defined in § 6001(22), but excludes a dwelling for human habitation.” Id. § 4413(d)(1). “Farming” under 10 V.S.A. § 6001(22) is defined, in turn, to mean a number of activities, including “(A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops,” “(B) the raising, feeding, or management of livestock, poultry, fish, or bees,” or “(D) the production of maple syrup.” The trial court found that lumber produced from timber harvested on the farm had been used for the construction, maintenance, and repair of buildings and structures on the farm properties. Slab wood created as a byproduct from the sawing had been used to fuel the sugar making operation and to heat other farm buildings; sawdust and shavings from the sawing and planing had been used as livestock bedding. Accordingly, the court concluded that the buildings at issue qualified as “farm structures” exempt from local zoning regulation under 24 V.S.A. § 4413(d), that the Newman-planer building therefore did not require a local zoning permit, and that the sawmill and kiln buildings could not therefore be found in violation of the local zoning ordinance.

The operative language of the statute, exempts buildings used for carrying out “practices associated with” farming. Id. (emphasis added). Experts testified that appellees’ wood processing activities represent “the epitome” of sustainable agriculture, and are common practices long associated with agricultural farming.now part of a broader larger movement toward a more sustainable agricultural economy, reflected in Vermont’s “right-to-farm” law, 12 V.S.A. § 5751. The record evidence, fully supports the trial court’s conclusion that appellees’ wood-processing activities constitute “practices associated with” farming, and that the structures used for carrying out these activities are exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1).

Sunday, July 7, 2013

Spoliation: mistaken destruction of independent blood sample is no statutory or constitutional grounds for dismissal of DUI charges.

State v. Gentes, 2013 VT 14 (21-Feb-2013) (mem.)   
Defendant entered a conditional guilty plea to the charge of driving while intoxicated (DWI). He argues on appeal that the superior court’s criminal division erred by denying his motion to dismiss both the criminal charge and the civil suspension of his license.  Defendant argued for dismissal based his claim that the Vermont Department of Health’s negligence deprived him of his statutory right to obtain an independent blood test result.  We affirm.


It was the Department that failed to correctly label the sample, resulting in it being misfiled and eventually destroyed.  Because defendant’s inability to obtain an independent test was not “prevented or denied by the enforcement officer,” there is no basis in the statute for suppression of the remaining evidence, and no call in the statute for dismissal.  21 V.S.A. § 1203a(a).

Defendant maintains that the department’s negligent handling of his blood sample deprived him of his constitutional right to “call for evidence in his favor” as set forth in Chapter I, Article 10 of the Vermont Constitution.  Under the applicable Bailey test, “if a defendant shows a reasonable possibility that the lost evidence would be exculpatory,” then the proper sanction for its absence depends upon a pragmatic balancing of the following three factors: “(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial.”  Id. (quotation omitted).  Essentially, defendant argues that the trial court erred in failing to dismiss the charge against him based on an application of the Bailey test.  Having weighed the Bailey factors, we find no constitutional violation and agree with the trial court that dismissal of the charge against defendant was not an appropriate remedy for the mistakenly destroyed evidence in the context of this particular case.

Torts. Hospital had no duty to prevent assault on patient by police; but nurse committed battery if nurse drew blood at police request without patient consent.

O'Brien v. Synnott, 2013 VT 33 (17-May-2013)(Robinson, J.)  


Plaintiff Kelley S. O’Brien sued defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for injuries he suffered when allegedly assaulted by police officers after defendants negligently allowed those officers unrestricted access to him in the hospital while he was recovering from surgery, and for drawing his blood at the request of law enforcement officers and without his consent. The trial court granted defendants summary judgment, concluding that it was not reasonably foreseeable that the police officers would harm plaintiff if allowed unsupervised access, and that nurse had plaintiff’s apparent consent to draw the blood. We affirm in part and reverse in part.

Defendants’ duty to protect plaintiff does not extend to protecting him from attacks by third parties that are not reasonably foreseeable. See also Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take precautions against a sudden attack from a third person which [the defendant] has no reason to anticipate”); id. § 320 (explaining that actor has duty to control conduct of third persons only when actor “knows or should know of the necessity and opportunity for exercising such control”). Considering the facts in the light most favorable to plaintiff, a law enforcement officer requested an evidentiary sample of his blood in the emergency room, and plaintiff refused. The officer said he would get a warrant. Plaintiff was taken from the emergency room for emergency surgery. While he was in the post-anesthesia care unit (PACU) recovering from the surgery, his nurse left the area, allowing a group of police officers the opportunity to access plaintiff’s room. The officers asked plaintiff for a blood sample. When plaintiff refused, they held him down, covered his mouth, and tried, unsuccessfully, to take his blood by force. We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack plaintiff if left unsupervised.

A provider commits battery if the provider performs a procedure without the patient’s consent. Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. Later, nurse returned and drew plaintiff’s blood. Nurse did not disclose to plaintiff her purpose for drawing blood, or that the blood draw was not in connection with medical treatment for plaintiff’s benefit. Nurse drew the blood for the purpose of providing a sample of plaintiff’s blood to the police. Plaintiff did not object to her drawing the blood, but also did not consent to her drawing his blood for a nonmedical purpose. In the absence of undisputed evidence that plaintiff knew or should have understood the nonmedical purpose of the blood draw, the fact that he did not object does not support the conclusion that his conduct amounted to apparent consent. Defendants argument relies on inferences in defendants’ favor that we cannot draw at the summary judgment stage.

We reject Defendant’s policy argument that medical providers should be immune from civil liability for battery when they draw a blood sample from an individual suspected of driving under the influence at the request of law enforcement officers without regard to whether the individual consents to the blood draw. The Legislature has expressly limited the liability of medical providers in certain circumstances related to blood draws and individuals suspected of driving under the influence, inapplicable here, but has not expressly required medical personnel to comply with law enforcement requests to draw blood, and has not immunized those providers from liability for complying. Without legislative action we conclude that when a patient is conscious and the authority to draw blood depends upon actual consent, the police officers’ request does not protect defendants from liability for drawing the blood without plaintiff’s consent.

Post Conviction Relief denied because “not in custody under sentence.” SCOVT divided whether in custody without bail on other charges counts.

In re Russo (2011-004)(24-May-2013)(Skoglund, J.)(Robinson, J., joined by Dooley J., dissenting.)
SKOGLUND, J.  Petitioner appeals a civil division order dismissing his post-conviction relief (PCR) petition for lack of jurisdiction.  Petitioner sought to attack convictions for which his sentences had been completed, and the court concluded that petitioner was not “in custody under sentence” as required by 13 V.S.A. § 7131.  Petitioner argued that he satisfied the custody requirement because, although his sentences were completed, they were used by the criminal division to hold him without bail pending trial on a different charge.  Because petitioner has failed to allege that his pretrial incarceration was sufficiently linked to the convictions he seeks to attack, we conclude that petitioner failed to meet the jurisdictional requirements of the PCR statute, and affirm.

Statute of limitations. Foreclosure of judgment lien denied because, despite amended judgment, lien expired eight years from original judgment.

Ayer v. Hemingway, 2013 VT 37 (24-May-2013)(Burgess, J.)(Robinson, J., dissenting).

Plaintiffs appeal from the trial court’s order granting summary judgment to defendants in this judgment lien foreclosure case.  Plaintiffs argue that a 2001 judgment had been renewed or revived by a 2006 stipulated amended order, and that the court erred in concluding that their judgment lien had expired. We affirm.

The trial court correctly found that plaintiffs’ judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based.  See 12 V.S.A. § 2903(a). Revival required the filing of a “new and independent action” on the judgment, see 12 V.S.A. § 506, which did not occurred here.  Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). (judgments cannot be renewed by motion, but only by the filing of a “new and independent suit commenced in accordance with Rule 3.” )      

Plaintiffs did not file a new complaint on the judgment.  Instead, they filed a motion for a possessory writ of attachment that led to a stipulated amended judgment order regarding payment of the 2001 debt. This was not a new “final judgment” for purposes of 12 V.S.A. § 2903(a).  The fact that this order might have been appealable does not change this result. Any other holding would create a continually moving statute of limitations. Were we to construe  such post-judgment orders as starting a new limitations period, a party could extend the life of a judgment lien indefinitely by filing motions.  The statute does not contemplate this result, and the need for certainty and predictability in the law compels us to reject such an approach.  The statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits.

Robinson, J. dissenting, cannot concur in the majority's conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. The statute of limitations draws no distinction between "original" and "amended" judgments, and nothing in the language of the statute supports the notion that "judgment" has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903 ("A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based . . . .").

Note:  See Flex-A-Seal, Inc. v. Safford, 2015 VT 40 


Professional Responsibility; actual and implied bias. Lawyer who had adopted child from DCF had no actual or implied personal-interest conflict of interest that precluded representing client adverse to DCF.

In re K.F. , 2013 VT 39 (07-Jun-2013)(Robinson, J.) 
Father appeals the termination of his parental rights on the grounds that the trial court erred in denying his motion for replacement counsel because his lawyer had a conflict of interest We affirm.

According to father, his lawyer’s prior adoption of a child made the lawyer sympathetic to DCF and unable to provide zealous representation to father, creating a “personal interest” conflict that mandated her removal. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father, and the findings shown no actual bias.

Vermont Rule of Professional Conduct 1.7. deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). We have held that a judge who was an adoptive parent is not disqualified from adjudicating whether adoptees were entitled to disclosure of adoption information. In re Margaret Susan P., 169 Vt. 252, 733 A.2d 38 (1999). We explained “[personal and family circumstances are [not] appropriate considerations on which to presume bias or partiality.” Id. at 256-57, 733 A.2d at 42.

Similarly, here, the simple fact of counsel’s family circumstances without any showing of a current connection to DCF or this case is insufficient reason to presume counsel’s inability to represent father. Moreover, the record supports the trial court’s findings rejecting father’s suggestion that his lawyer’s lacked any zeal in representing him. The court did not abuse its discretion in denying father replacement counsel on this basis.

Workers Comp: SCOVT reverses DOL re PPD for CPRS; allows AMA Guide impairment rating without AMA diagnosis!

Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (21-Jun-2013)(Robinson, J.)
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty.  The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides.  We reverse.


Wednesday, June 19, 2013

Appeal untimely. Being away from mail during vacation or otherwise failing to open mail is not excusable neglect justifying extension of time for appeal. Extension of time for late “receipt’ of order under V.R.A.P. 4 unavailable because notice was “received” when order arrived in mailbox, not when lawyer looked in the mailbox.

Coles v. Coles 2013 VT 36 (Burgess, J.)

Father challenges the trial court’s denial of his motion to reopen the time in which to file an appeal from a maintenance and child support order. He asserts that his motion was timely under Vermont Rule of Appellate Procedure 4(c). We affirm.

Counsel failed to prove that he did not receive notice of the court’s decision within twenty-one days, and thus failed to meet the threshold requirements for relief under V.R.A.P.4(c), which provides:
In any civil action, the superior . . . court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 90 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal. 
(emphasis added.)

The court’s docket entries indicate that an order was mailed to the parties on Monday, March 14, 2011, twenty days after entry of the order. Counsel was on vacation beginning Thursday, March 17, 2011,  and returned to work on Monday, April 4, 2011. He indicated that the mail arrived during his absence and the thirty-day appeal period had expired by the time he opened his mail. Counsel did not offer any evidence as to when the notice actually arrived in the mailbox. Instead, counsel argued only that he “received” the order when he opened his mail.

This approach would obviate our jurisdictional time limits, and it would not serve the strong interest in finality of judgments. The rule is not designed to allow the trial court to reopen the time for appeal because an attorney has not opened his or her mail. Instead we hold the “receipt” of notice contemplated under Rule 4(c) is receipt in a party’s mailbox.

The delay was not due to excusable neglect under Rule 4(d). Jurisdictional time limits do not and cannot depend on the vagaries of an attorney’s vacation schedule. Being away from delivered mail during vacation or otherwise failing to open mail, without more, is not excusable neglect. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838 A.2d 98 (internal office procedure breakdown not excusable neglect as a matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (lawyer’s vacation and internal office procedure breakdown not excusable neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule not excusable neglect).

Restitution for Mutual mistake. Neither negligence nor imputed knowledge on part of plaintiff is a defense if there is an actual mistake and circumstances show unjust enrichment.

 Dover Corp. v. First Wisconsin Mortg. Trust, 139 Vt. 217, 425 A. 2d 97 (1980).
Plaintiff requested restitution based on a mutual mistake of fact relating to tax pro-rations at a closing. The trial court concluded that defendants had been unjustly enriched, and awarded $19,620.58 plus interest, reflecting the credits given defendants because of the mutual mistake as to the taxable year. Defendants appeal. We affirm.

Plaintiff, Dover Corporation, purchased the Mt. Snow ski area from defendants for a specific amount, subject to certain closing adjustments. The parties agreed to prorate the sewage taxes for the taxable year 1977 as of the date of closing. At the closing August 10, 1977,  defendants' agent represented that the sewage taxes had been paid in full for the fiscal year April 1, 1977, to March 31, 1978. Based on this understanding, the sewage taxes were prorated so that defendants received a credit for those taxes paid by them for the period from the date of closing to March 31, 1978.  However in fact the tax year was from January 1, 1977 to December 31, 1977, and the taxes were paid only through June 30, 1977.

Defendants challenge the court's conclusion that plaintiff was mistaken as to the proper taxable year, because  Plaintiff had received a title certificate from a local attorney noting, correctly, that the taxable year for sewage assessments ran from January 1, 1977, to December 31, 1977. Defendants argue that the knowledge of plaintiff corporation controls the issue of mistake and that the court's finding that plaintiff had received the correct facts before the closing adjustment precludes a claim of mistake.

"[A] mistake is an unintentional act or omission arising from ignorance, surprise, imposition or misplaced confidence, and it exists when a person under some erroneous conviction of law or fact does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted." Ward v. Lyman, 108 Vt. 464, 472, 188 A. 892, 896 (1937). See also Restatement of Restitution § 6 (1937). The knowledge which may have been imputed to plaintiff from plaintiff's attorney is not the issue. Certainly here we have an example of misplaced confidence in the mistaken opinion of defendants' agent. We find no error.

Defendants further argue that the trial court abused its discretion in granting relief despite plaintiff's lack of care and vigilance. But negligence of the party injured should not prevent a court from correcting a mutual mistake of fact. Ward v. Lyman, supra. See also Restatement of Restitution § 59 (1937). Whether a mistake is to be corrected depends upon the circumstances of the case. Here defendants were found to be unjustly enriched and plaintiff alone would suffer injury if relief were not granted. We think the case affords a solid ground for relief.

Judgment affirmed.



Damages for negligent infliction of emotional distress rejected in legal malpractice case, not because there was no physical injury and no zone of danger, but because the type of representation did not involve deeply personal and emotional issues

Vincent v. DeVries, 2013 VT 34 (Robinson, J.)


This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.

Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.

The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l

Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.

Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff
.

Thursday, April 18, 2013

Refurbisher of propane tank not strictly liable for defects causing explosion because refurbisher never “sold” the tank.


Betz v. Highlands Fuel Delivery, LLC, No. 5: 10-cv-102 (D. Vt. Jan. 31, 2013) (Reiss, Chief District Judge)

The case arises out of a 2009 explosion of a propane tank owned by Highlands. After Ditech refurbished and recertified the Propane Tank, Highlands placed it on Plaintiffs' property where it exploded and caught fire, destroying Plaintiffs' home and other property. Ditech contends that it provided refurbishment services and was not a "seller" of goods, and did not "sell" the propane tank to anyone. We agree.

Vermont law requires "seller" status as an essential component of a strict product liability or breach of implied warranty claim. See Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 569, (2000)  ("Because CVPSC did not sell the electricity that allegedly caused the fire in this case, the trial court correctly refused to instruct the jury to apply the doctrine of strict product liability."); 9A V.S.A. § 2-314(1) (providing for an implied warranty of merchantability when "the seller [of goods] is a merchant with respect to goods of that kind"); Restatement (Second) of Torts § 402(A) cmt. a ("This Section states a special rule applicable to sellers of products.").

At best, Highlands asserts that Ditech's refurbishment of the Propane Tank was so extensive that it was like the sale of a new product. This will not suffice where the primary objective of the transaction remains the provision of a service. The fact that Ditech supplied a new valve or other items in the processing of refurbishing the Propane Tank does not alter this conclusion. 

Because Highlands cannot establish that Ditech was a "seller" of the Propane Tank, or furnished a defective component part, summary judgment on their strict product liability and breach of implied warranty crossclaims is hereby GRANTED in Ditech's favor.

Friday, March 22, 2013

Untimely appeal. Appeal period, tolled once by a motion for new trial, cannot be tolled again by a motion to “reconsider” under Rule 59(e).

Fagnant v. Foss, 2013 VT 16A (mem.) (August 30, 2013) (on reargument).
A motion to reconsider an order disposing of a time tolling post-trial motion of the kind enumerated in Rule 4(a)(4) does not again terminate the running of the time for appeal.

This Court's March 15, 2013 opinion is withdrawn. The appeal is dismissed as untimely filed.


Fagnant v. Foss, 2013 VT 16 (March 15, 2013)
Robinson J. Plaintiff appealed after the court denied plaintiff’s motion to reconsider the denial of plaintiff’s motion for new trial. Defendant contends the appeal is untimely. Although a timely motion for new trial terminates the running of time for the appeals period, defendant argues that once a motion for new trial is denied, then the full time for filing a notice of appeal begins to run again, unaffected by defendant’s later motion to reconsider. We hold plaintiff’s appeal was timely filed.

A “motion to reconsider” is not expressly recognized in the Vermont Rules of Civil Procedure. The Court will treat a motion to reconsider as a motion under V.R.C.P. 59(e) that terminates the running of the appeal period.when the timing and content of the motion to reconsider indicate that it was, for all intents and purposes, a motion to alter or amend. Although Plaintiff’s motion for reconsideration here was directed at the court’s denial of a Rule 59 motion, rather than at its initial judgment, it was essentially a motion to alter or amend, and the appeal period did not begin to run again until the court ruled on plaintiff’s motion to reconsider. Plaintiff’s appeal was timely filed.

Torts. Causation. SCOVT reverses defendant’s verdict in low impact whiplash case because causation charge required jury to find the injury was reasonably foreseeable.

On reargument the Court's March 15, 2013 opinion which follows is withdrawn. The appeal is dismissed as untimely filed .Fagnant v. Foss, 2013 VT 16 (Robinson, J.) 

This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant’s conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court’s instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff’s injuries, even though “duty” and “breach” had been established as a matter of law, and we reverse.

The court included the following paragraph at the end of the proximate cause instruction:

“The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.”

What makes this instruction problematic, is the court’s linkage of “foreseeability” to the concept of proximate cause, particularly where the defendant’s breach of a legal duty to plaintiff was established as a matter of law and the only issues left to the jury were causation and damages. The foreseeability of the consequences of a defendant’s actions is relevant only to the question of whether the defendant had and breached a legal duty to the plaintiff.

It has been so long settled in this jurisdiction that proximate cause relates only to cause-in-fact, with no foreseeability required, that extended discussion is unnecessary. Although relevant to the determination of duty and breach, foreseeability “is not a factor in determining proximate cause. A defendant who has breached a legal duty to a plaintiff is liable for all the injurious consequences that flow from the negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law’s notice.

In this case, rather than clearly instructing the jury that defendant was liable for all injurious consequences that flowed from her admitted breach of a duty to plaintiff, the trial court expressly directed the jury to consider the foreseeability of the type of injury plaintiff alleged as an element of proximate cause, even though duty and breach had been established as a matter of law by the court and the jury had been so instructed.

Defendant’s closing argument, in addition to directly refering to the instruction on foreseeability, reiterated the notion that “this kind of event doesn’t cause injury.” In light of the court’s instruction concerning foreseeability and defendant’s focus on that instruction in closing, the jury could easily have concluded that plaintiff was not entitled to recover for her ongoing injuries, even if they were caused by defendant’s actions, because the kind of injuries she suffered was not foreseeable. Thus, we find the instruction was prejudicial.

Saturday, February 16, 2013

Real estate agreement was contract for deed, not lease option. Though a contract for deed is treated as a mortgage, foreclosure remedy is not available under Rule 54(c) without notice, and appeal is not barred by Rule 80.1(m) requiring permission.


Prue v. Royer, 2013 VT 12 (Dooley, J.) 

The parties in this case entered into a real estate agreement which the trial court held to be contract for deed giving the purchasers an equitable interest in the property in question. The court initiated a foreclosure on that interest, even though it had not been pled. Plaintiffs, the purchasers as found by the trial court, appeal from the foreclosure. Defendant, the seller as found by the court, appeals from the court’s conclusions that the contract was an enforceable contract for deed. We affirm the trial court’s rulings that the agreement was a contract for deed, that its modifications were enforceable under the Statute of Frauds, that plaintiffs had an equitable interest in the property, and that they did not abandon that interest. We also hold that this matter is properly before us, despite noncompliance with 12 V.S.A. § 4601, and affirm the conditional award for damages for waste. Because the court’s foreclosure ruling awarded a remedy that was not pled or fully litigated, however, we reverse the foreclosure decree as premature and remand for a new foreclosure proceeding.

This case arises out of the lack of clarity in the parties’ agreements. The primary agreement is completed on a realtor pre-printed contract entitled “Purchase and Sale Contract,” but “Lease-Option to Purchase” is handwritten below that title. A separate page is entitled “Financing Property Agreement.” Plaintiffs characterized the agreement as a contract for deed, such that they acquired equitable title subject to a mortgage. Defendant, in contrast, characterized the agreement as a lease-option contract, such that plaintiffs were only leaseholders until they paid the purchase price.

Unlike a contract for deed, a lease-option to purchase is a unilateral contract; its acceptance rests wholly in the discretion of the leasee -optionee. The other main way in which a lease option is distinguished from a contract for deed is that the lease payments are not applied on the purchase price. Because we find that the contract represented a bilateral agreement to purchase the property, and that the payments went towards the purchase price of the property, we affirm the finding of the trial court that the agreement was a contract for deed, rather than a lease-option agreement. The consequence of this conclusion is that defendant’s interest is as an equitable mortgagee, not as a landlord or optionor.

Vermont has consistently treated a contract for deed as an equitable mortgage. It has been one of only a small minority of states to do so, however, a trend has developed consistent with the Vermont view. Thus, the Restatement (Third) of Property: Mortgages § 3.4(b) (1997) provides that “[a] contract for deed creates a mortgage.”

Defendant argues that plaintiffs failed to seek permission to appeal within ten days as required by Rule 80.1(m). Rule 80.1(m) applies only where “the permission to appeal [is] required by law.” 12 V.S.A. § 4601 provides, “When a judgment is for the foreclosure of a mortgage, permission of the court shall be required for review.” The issue is controlled by Herrick v. Teachout, 74 Vt. 196, 202, 52 A. 432, 434 (1902) (statute applies only to mortgages which are such upon their face, or recognized as such by the parties, and not to cases where the character of the instrument is in issue.) This is not a run-of-the-mill foreclosure action, and permission was not required by law.

Vermont Rule of Civil Procedure 54(c) states “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” Despite the breadth of the language of the rule, it is overriden by considerations of “substantial justice” here, where Plaintiffs were prejudiced by the court’s sua sponte introduction of foreclosure into the case.

Sunday, February 3, 2013

Discovery. Experts. SCOVT holds general expert disclosure insufficient to reveal “substance” of opinion, by not answering detailed time, place and manner follow-up questions.

Stella v. Spaulding2013 VT 8 (Skoglund, J.)  (Robinson, J., joined by Dooley J., dissenting.)

In this medical malpractice action, plaintiff appeals the court’s entry of judgment in defendants’ favor following the court’s discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants’ negligence as was requested in Interrogatories 64 and 71. Because of the sanction plaintiff could not oppose summary judgment, which the court granted in defendants’ favor. On appeal, plaintiff claims its disclosure was adequate and that no further information was required under the applicable rule. We affirm.

Interrogatory 64 requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Plaintiff responded by identifying a traeting physiciaon who would testify the defendant new or should have known that the patient had developed an infection at the site of her surgical incision but failed to aggressively treat the infection with antibiotics in breach of the standard of care

Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. Plaintiff failed to answer this question with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death, other than the treating physician’s medical record.

The critical and limited issue here is whether interrogatory 71 sought to obtain more than what was required by Rule 26(b)(4). Did the court abuse its discretion in concluding that plaintiff had failed to provide “the substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(i). Interrogatory 71 asked about plaintiff’s specific theory of the case. We hold the court did not abuse its discretion; the incidents of negligence committed, the dates of those acts and how those acts deviated from the standard of care lies within the bounds of what the rule requires to be disclosed.

We reject the dissent’s assertion that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal. When a trial court imposes the ultimate sanction of dismissal, we require findings of fact to show bad faith or deliberate and willful disregard of the court’s orders, as well as prejudice to the opposing party. But in this instance no no dismissal was imposed. Because the sanction in this case precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.


ROBINSON, J., (joined by Dooley J., dissenting.) The issue in this case is whether defendants were entitled to get the reqauest infomraiotin by the particular tool of expert interrogatories pursuant to Vermont Rule of Civil Procedure 26(b)(4)(A)(i). In affirming the trial court, the majority applies a far more exacting standard than the Rule supports. Moreover, the trial court’s sanction for the purported discovery violation, which was tantamount to dismissal of plaintiff’s case on the merits, exceeded the trial court’s broad discretion.

Dr. Stickney was a treating physiciian and is an “event witness.” To the extent that the facts he knows and opinions he holds were not acquired or developed in anticipation of litigation, but, rather, arise from his own participation in the case, plaintiff was not obligated to make expert disclosures for Dr. Stickney pursuant to Rule In fact, in the context of a medical malpractice case, this Court has held that the defendant hospital did not run afoul of Rule 26(b)(4) when it introduced opinion testimony from treating physicians without having disclosed them as expert witnesses. Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) 26(b)(4). However plaintiff waived this point.

The question presented by this case is whether plaintiff’s expert disclosures were sufficient to give defendant “notice of the basic arguments” plaintiff intended to pursue at trial. This is the disclosure:

"The refusal of [defendants] to treat [decedent’s infection] caused her to develop sepsis which led to her death. Specifically, [defendants] knew or should have known that [decedent] had developed a[n] . . . infection at the site of her surgical incision and that she should have been treated with antibiotics. This failure to aggressively treat [decedent’s infection] with antibiotics was a breach of the standard of care. In addition, [defendants], when contacted by Dr. Stickney, refused to allow Dr. Stickney to prescribe [decedent] antibiotics for her [infection] claiming that she was their patient and her post surgicaltreatment was their responsibility. The refusal of [defendants] to allow Dr. Stickney to treat [decedent] with antibiotics was a breach of the standard of care."

What more need plaintiff say to put defendants on notice of its theory of malpractice? Plaintiff in this case was not required to answer by interrogatory the litany of detailed follow-up questions posed by defendant. Plaintiff was not required to facilitate an expert-deposition-by-interrogatory. The fact that some questions posed by defendant remain unanswered, or unanswered to defendant’s satisfaction, does not mean that plaintiff has failed to comply with its obligations pursuant to Rule 26(b)(4)(A)(i). Plaintiff’s disclosure as to the substance of Dr. Stickney’s opinions was more than sufficiently detailed to put defendant on notice of the arguments plaintiff intended to press at trial.

Saturday, January 26, 2013

Commercial lease. Defective eviction notice means “wrongful eviction” and forfeiture of right to rent or liquidated damages.

Vermont Small Business Development Corp. v. Fifth Son Corp., 2013 VT 7 (Dooley, J.)
Landlord appeals a partial summary judgment order concluding that his eviction of tenant from a property was wrongful, as well as the trial court’s ruling on a post-trial motion that tenant was not liable to landlord for rent that accrued post-eviction. Because landlord’s notice of default was defective, and because a wrongful eviction releases a tenant from liability for rent accrued post-eviction, we affirm.

Our law is clear on the necessity of strict compliance with terms in a lease in order to effectuate an eviction: The time, mode and manner of notice of termination must conform to the agreement. With respect residential leases, we require “punctilious compliance with all statutory eviction procedures, including notice provisions. There is no reason to require less “punctilious compliance” with terms of a lease providing for notice in the nonresidential context.

The notice of default was defective in two ways. First, although the terms of the restaurant lease clearly require lessor to “specify[] the occurrence giving rise to [the] Event of Default,” it failed to do so. Second, although the restaurant lease provides that the notice must “stat[e] that this Agreement and terms hereby demised shall expire and terminate on the date specified in such notice,” lessor did not specify any such date. (Emphasis added.) The lease states that the date of termination must be “at least twenty (20) days after the giving of such notice.” (Emphasis added.) We cannot read that language as setting the date of termination at twenty days after the date of the notice.

Because the notice of termination of the restaurant lease was defective, we affirm the trial court’s finding on summary judgment that lessor’s eviction of lessee from the restaurant was wrongful.

Because lessor did not properly terminate the tenancy, we uphold the trial court decision that lessor cannot collect post-eviction rent, whether labeled as such or as liquidated damages.

SCOVT NOTE: In Panagiotidis v  Galanis, 2015 VT 134 the Court refused to extend the requirement of punctiolous compliance to the manner of notice, as opposed to the contents, where the manner of notice given is actually more certain.

How cited

Appeals. Zoning finality. Rules suspended to confer appellate jursidiction over interlocutory appeal from order remanding zoning case to DRB. Stowe Club test does not preclude amended permit, because changing lot designated for required hotel did not require change in permit condition.

In re Stowe Highlands Merger/Subdivision Application, 2013 VT 4 (Burgess, J.) 

This appeal stems from Stowe Highlands’ application to amend its PUD by subdividing and then merging certain lots, including one designated for a hotel. The DRB concluded that the amendment amounted to a change in the permit conditions and that Stowe Highlands had not demonstrated an unanticipated change in factual circumstances beyond its control. The Environmental Division reversed, concluding that the application required no permit condition change. We affirm.

The Environmental Division’s order was not a final judgment, because the court remanded the case back to the DRB to conduct a merits review. See In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding that environmental court’s decision remanding case to zoning board for review was not a final judgment). Nonetheless, no party moved to dismiss the appeal for lack of a final judgment and the case has been fully briefed and oral argument presented. The appellate rules can be suspended as a matter of discretion in the interest of judicial economy, and we do so here and decide the issue presented. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.) (allowing suspension of appellate rules when, as here, dismissal of the appeal “most likely would result in an appeal after final judgment”); see V.R.A.P. 2.

The DRB applied the Stowe Club test to evaluate whether to grant such a change. Under this test, the Board examines whether a permit modification is justified by: changes in factual or regulatory circumstances beyond the permittee’s control, changes in the project’s construction or operation not reasonably foreseeable at the time the permit was issued, or changes in technology. In re Stowe Club Highlands, 166 Vt. at 38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7, 13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club test).

The court was correct in its assessment that no evidence supported a reading of the permit to condition development of Parcel 1 to nothing beyond a hotel or inn. The application proposed to decrease the lot size for the hotel, but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. Because the proposed amendment did not require a change in a permit condition, the Stowe Club test was not applicable, and the Environmental Division’s reversal and remand to the DRB for further review of the application was proper.

Biological rights. Where putative father’s claim is based on biology alone, Vt law constitutionally precludes a second parentage action after final judgment in first parentage action to which the putative father was not party.

Columbia v. Lawton, 2013 VT 2 (Robinson, J.)  

This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child’s parents. We conclude that Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent and that constitutional considerations do not require the court in this case to entertain the second parentage case.

In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. He did not seek to establish a legal tie to the minor child until more than two years after the child’s birth, and never had any significant custodial, personal, or financial relationship with the minor child despite ample opportunity to formally declare and pursue his assertion of parentage.  After the child's birth he wrote  mother from jail requesting photos of the child, but the request for pictures, without accompanying efforts to take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights was not enough. When he did step forward, more than two years after the child's birth, he could not claim any indicia of parenthood other than, possibly, a genetic connection. Accordingly, we affirm the trial court’s decision denying plaintiff’s motion for genetic testing and dismissing his complaint for establishment of parentage.