Thursday, June 21, 2018

Divided Court holds Grandparents not liable as a matter of law for grandson’s assault of worker at their property because there was no control and therefore no employer-employee relationship between grandparents and father that warranted imposing liability on grandparents for father’s negligent supervision of grandson.

Kuligoski v. Rapoza, 2018 VT 14 [2/16/2018]

SKOGLUND, J. This is the second case arising from the near-fatal assault of Michael Kuligoski by Evan Rapoza, who had previously been diagnosed with schizophreniform disorder. In this case, plaintiffs—members of the Kuligoski family—brought suit against Evan’s grandparents, claiming that they were liable for Evan’s assault of Mr. Kuligoski while Mr. Kuligoski was repairing the furnace at their rental property. Plaintiffs claim, among other things, that the grandparents are vicariously liable for Evan’s father’s negligent hiring or supervision of Evan, who was there to help his father repaint an apartment. On appeal, plaintiffs seek reversal of the trial court’s order granting grandparents summary judgment. Plaintiffs argue that the court erred by determining that grandparents could not be held vicariously liable for the attack because it was not reasonably foreseeable. We affirm, but on a different basis than that relied upon by the trial court.

As a preliminary matter, we reject grandparents’ argument that plaintiffs’ failure to appeal from the trial court’s order granting summary judgment to Evan’s parents estops plaintiffs from pursing their claim imputing negligence to the grandparents. There was no preclusive effect arising from the court’s summary judgment order in favor of the parents, because it was not a final judgment and the final judgment was timely appealed.

To prevail on its claim against grandparents, plaintiffs must demonstrate not only negligence on the part of father, but also an employer-employee relationship between grandfather and father that warrants imposing liability on grandparents for father’s negligence. In tort cases, we have relied upon the common law “right to control” test to determine whether a worker is an employee or an independent contractor. See Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126, 14 A.3d 968; RLI Ins. v. Agency of Transp., 171 Vt. 553, 554, 762 A.2d 475, 477 (2000) (mem.); LeClair v. LeClair, 2017 VT 34, ¶ 38, ___ Vt. ___, 169 A.3d 743 (stating that “essential element” in determining employer-employee relationship “is the right to control” (quotation omitted)); see also Restatement (Third) of Agency § 7.07(3)(a) (stating that, for purposes of that section, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).

The undisputed facts show that father managed the out-of-state grandparents’ building and did renovation work that he recommended without any control, or expectation of control, by grandparents over the means or methods of his work. Because this is not a close case with respect to the primary right-to-control test, we need not look at the supplementary Restatement factors.


REIBER, C.J., dissenting. Grandparents may not have elected to exercise their right to control the means and methods of their son’s work as property manager of their apartment building, but that is not the test. The test is whether they had a right to control his work. The nature of the relationship strongly suggests that they did. At minimum, particularly given the inferences inherent in the relationship suggesting a right to control, it is for the jury, not this Court, to make that determination. A reasonable jury could reasonably infer from the facts that grandparents had the right to control the means and methods of father’s work at their apartment building, so as to make them potentially liable for father’s conduct in hiring and/or supervising grandson on the property. Further, I would adopt the American Law Institute’s view that foreseeability is primarily a consideration in determining whether a duty has been breached or whether the defendant’s conduct proximately caused the harm—both of which are ordinarily factual determinations within the purview of the jury. See Restatement (Third) of Torts: Physical & Emotional Harm § 7 cmt. j (2010) (stating that proper role for foreseeability is not in determining whether duty exists, which is purely legal question regarding whether to impose liability in category of cases, but rather in making factual determination as to whether duty was breached). Because I disagree with the majority’s determination as a matter of law that no employer-employee relationship existed between grandparents and father, and because I would also hold that the trial court erred by not allowing the jury to determine the foreseeability of the nature of the harm resulting from father bringing Evan to the work site, I respectfully dissent.

SCOVT reverses summary judgment for defendant based on finding in earlier case, holding issue preclusion does not apply to a finding that was untested on appellate review.)

Daiello v. Town of Vernon2018 VT 17  [2/16/2018]

EATON, J. Plaintiff landowner, who built a residence on leased property owned by defendant, Town of Vernon, appeals the superior court’s order granting the Town summary judgment with respect to his claim that the Town breached a covenant of quiet enjoyment implied in the 1838 lease by not providing him access to the property. We reverse and remand for further proceedings.

The trial court granted the Town’s summary judgment motion, ruling that as a matter of law, the Town did not breach the covenant because the finding in Merritt v. Daiello that plaintiff had access to his property from the west precluded plaintiff from relitigating that fact.

In Merritt v. Daiello, plaintiff challenged on appeal the trial court’s finding of access to his property from the west, but this Court declined to review that finding because it upheld on different grounds the trial court’s conclusion that there was no easement by necessity. Commentators and courts alike have held that issue preclusion should be denied with respect to any finding that was untested on appellate review. See Restatement (Second) of Judgments § 27 cmt. o ("If the appellate court upholds one of the[] determinations [by the lower court] as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive [only] as to the first determination.")

Accordingly, plaintiff is not precluded in this proceeding from relitigating whether he has access to this property from the west.

The second preclusion question raised herein is whether the parties are precluded from relitigating in this case whether Stebbins Road was properly laid out by the Town The issue of whether the Town properly laid out Stebbins Road was raised in Merritt v. Daiello, determined by the superior court in the Merritts’ favor, and upheld on appeal. The Town is correct that because it was not a party in Merritt v. Daiello, it is not precluded from arguing that Stebbins Road was properly laid out as a public road.

On remand, if the court rules the Town properly laid out Stebbins Road and thus did not interfere with plaintiff’s access over that road this would result in two inconsistent judgments. By not joining the Town in their earlier action seeking to prevent plaintiff from accessing his property through their property based on a claim that the Town had failed to properly lay out the public road crossing their property, the Merritts ran the risk that issues resolved in that action would be subject to religitation in any later action involving the Town and themselves as indispensable parties.

SCOVT affirms ruling that children’s share of the personalty should contribute to estate’s administrative expenses only if spouse’s share of the personalty is insufficient.


REIBER, C.J. Allen Avery (testator) died testate in 2008 and left property to his spouse and children. Spouse, children, and the executor of the estate have disputed how the estate’s administrative expenses should be allocated. The civil division determined that expenses should be paid out of spouse’s share of the personal estate until paid in full or until they exhaust her share, and that children’s share of the personalty should contribute to administrative expenses only if spouse’s share of the personalty is insufficient. Spouse appeals. We affirm.

Because we have found no Vermont case law addressing this issue, we look to the Restatement (Third) of Property (Restatement) and other states' case law for an expression of the common-law rule of abatement. Restatement (Third) of Prop.: Wills & Donative Transfers § 1.1 (1999) . According to the Restatement, "[u]nless otherwise provided by will or applicable statute, shares of heirs and devisees abate in the following order to pay claims: (1) intestate shares; (2) residuary devises; (3) general devises; (4) specific devises." Restatement, supra, § 1.1 cmt. f.

This order of abatement is based on § 3-902 of the Uniform Probate Code (UPC), "which codifies the usual rules of abatement followed generally." Restatement, supra, § 1.1 reporter's note 3. The UPC states: "[S]hares of distributees abate . . . in the following order: (i) property not disposed of by will; (ii) residuary devises; (iii) general devises; (iv) specific devises. . . ." U.L.A. Uniform Probate Code § 3-902(a) (2010).

 No one disputes that here the devise to children was a specific devise, and spouse's devises were either general or residuary.

The will clearly indicates that administrative expenses be paid out of the personal estate, but it does not otherwise indicate how to allocate expenses within this class of assets. Absent indication of testator's intent, we presume intent from the common law.

Friday, June 1, 2018

SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.


In re Mathez Act 250 LU Permit, 2018 VT 55 [5/25/2018]



 REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal.  Tthe court granted summary judgment in favor of applicants and ordered the District Commission to vacate its decision to issue a second notice of the permit. . We affirm.


The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission  does no have open-ended authority to change a permit or an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

 An extension of time must be requested within thirty days of the initial period of appeal,  and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.

SCOVT reverses order dismissing zoning appeal as untimely, and remands to decide whether the exception under V.R.A.P. 4(c) applies because party did not receive notice of judgment.


In re Mahar, 2018 VT 20 [filed 2/15/2018]

EATON, J. Neighbors appeal the Environmental Division’s order dismissing as untimely their appeal to that court from a decision of the Town of Jericho Development Review Board (DRB) granting a conditional use permit.  Neighbors argue that the appeal was timely because they did not receive proper notice of either the hearing before the DRB or the resulting DRB decision. We conclude that at least some neighbors adequately raised a sufficient basis to reopen the appeal period and timely filed an appeal. Therefore, we reverse the dismissal and remand to the Environmental Division for resolution of the motion to reopen the appeal period and, if grounds are found, an adjudication on the merits of neighbors’ appeal.

Appeals to the Environmental Division from an act or decision of “an appropriate municipal panel pursuant to 24 V.S.A. §§ 4471, 4472” must be filed “within 30 days of the date of the act, decision, or jurisdictional opinion appealed from, unless the court extends the time.” V.R.E.C.P. 5(a)(1), (b)(1). The Environmental Division held that the appeal period does not begin to run until the individual seeking to appeal had constructive or actual notice of the municipal panel’s decision. This is not the correct legal standard. The appeal period is a single time period; it does not differ for each prospective appellant. The statute states that the appeal period is triggered by the date of the decision, not the date of notice. See V.R.C.P. 77(d) (explaining that lack of notice by clerk “does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal”)

To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal. Relevant to this case, under Vermont Rule of Appellate Procedure 4(c), the time for filing a notice of appeal can be reopened if:
            (1) the motion is filed within ninety days of entry of judgment or seven days of receipt of notice of judgment, whichever is earlier;
           (2) the court finds that a party entitled to notice did not receive it; and
           (3) no party would be prejudiced.
See V.R.E.C.P. 5(a)(2) (stating that appellate rules apply in appeals to Environmental Division). To reopen an appeal period under Appellate Rule 4(c), a litigant should make a motion with notice to all parties so that the court and the parties are aware of the basis on which the litigant seeks to appeal.

The undisputed facts establish that Harritt and Butler met the first two requirements of  Rule (c). The undisputed facts are insufficient to determine the final requirement—a demonstration that there is no prejudice to another party.

Prejudice to another party “‘means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal.’”. On remand, the Environmental Division must evaluate whether Rule 4(c)(3) was met.

We note that the trial court has discretion to deny a motion to reopen even where all of the requisite criteria are met. See V.R.A.P. 4(c) (stating that “court may, upon motion, reopen the time to file an appeal”)