Insufficient circumstantial evidence of aiding murder.

 State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) 

ALLEN, Chief Justice.Defendant Rebecca Durenleau appeals her conviction following a jury trial for the first-degree murder of her husband, Michael Durenleau. Defendant contends that the State failed to present sufficient evidence to establish her guilt beyond a reasonable doubt. We agree and reverse.

On the evening of July 12, 1985, defendant and her husband left their Swanton home and headed for the tavern. They arrived at approximately 9:30 p.m. and defendant parked the car in an unlit area behind a building located to the rear of the tavern.  The Durenleaus entered the bar together, found a table, and ordered a beer. After driving nearly thirty miles from Swanton to Essex, they stayed only fifteen minutes 983*and left without finishing the beer. Defendant and her husband went back to the car; Without warning, Michael Durenleau was struck in the back of the head with a blunt instrument and stabbed twice in the heart. 

In reviewing a denial of a Rule 29 motion, this Court must determine whether the evidence presented by the State, taken in the light most favorable to the prosecution and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.

To convict defendant, the prosecution had to prove that Olmstead unlawfully killed Michael Durenleau, wilfully and deliberately, with premeditation, and that defendant aided or incited him in that killing.

 The evidence established that defendant carried on an adulterous affair, wanted to leave her husband for Olmstead but was concerned about losing her house and children, lied when she denied knowing about an increase in her husband's life insurance, and said she would be better off if her husband were dead. Knowing of the mutual hostility between Olmstead and her husband, she threatened to start sleeping with her husband again unless Olmstead "proved himself." The fatal trip to Veronica's was planned in advance, and defendant drove to the tavern and parked in the back. After a fairly long drive to the tavern, defendant and her husband stayed only briefly. An individual fitting Olmstead's general description and a truck similar to his were seen in the area around the time of the assault. Defendant failed to direct the bar patrons to the murder scene immediately. Shortly after the killing, defendant and Olmstead 984*were in regular contact, and Olmstead told defendant that he had "proven himself."

After careful review of the record in the light most favorable to the State, we conclude that a jury could not properly find defendant guilty beyond a reasonable doubt If Olmstead had lain in wait and ambushed Durenleau, the only evidence of defendant's participation was the fact that the reconciliation celebration had been planned in advance, that defendant drove and parked behind the bar, that they stayed only briefly, and that she did not immediately direct people to the rear of the building. Without additional evidence, the jury was left to speculate that defendant and Olmstead had orchestrated the attack. t

Defendant may have been happier without her spouse, and may have unwisely continued to associate with Olmstead, a suspected murderer, but the evidence does not permit rational inferences sufficient to establish guilt beyond a reasonable doubt that defendant assisted in her husband's murder.

Therefore, we reverse the conviction and direct entry of a judgment of acquittal. We do not readily overturn a jury's determination, but this Court cannot shrink from its duty to protect an individual's due process right to conviction only by evidence of guilt beyond a reasonable doubt.

Double jeopardy bars her retrial, 

985

The judgment of conviction is reversed, and a judgment of acquittal is entered.

 Peter F. Langrock and Beth Robinson of Langrock Sperry & Wool, Middlebury, for defendant-appellant

SCOVT reverses "judgment on the pleadings" for failure to serve because the court lacked sufficient evidence to determine whether service was completed.

Messier v. Bushman, 2018 VT 93 [filed 8/24/2018]

EATON, J. On January 16, 2014, Michael Messier and Kay Bushman were involved in an auto accident in Berlin. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. On January 13, 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman for negligence. The trial court granted a motion for judgment on the pleadings filed by Bushman on the basis that neither personal nor substituted service had been accomplished on Bushman.. We reverse and remand .

The pleadings were not closed when the motion was filed, and the service issues were not apparent from the face of the pleadings. Although styled as a motion for judgment on the pleadings, the gravamen of the motion was that service of process had not been accomplished on Bushman. Thus, the motion was akin to one seeking dismissal under V.R.C.P. 12(b)(5). This is a distinction with a difference. Judgment on the pleadings, as the name suggests, results in a judgment and is an adjudication on the merits. A dismissal for failure to properly serve the summons and complaint results in a dismissal and is not a merits adjudication.

.We do not agree with Messier that Bushman waived the  defense of improper service  by failing to raise it by motion or answer within the time allowed for answer under V.R.C.P. 12(a) following actual notice. An answer filed a few days late, if this one was, which raised the defense of insufficient service of process  did not  waive the defense. 

On a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, or insufficiency of service of process, consideration of matters outside the pleadings is permissible. Here, the court lacked sufficient evidence to determine whether Messier completed § 892(a)’s requirements by providing Bushman with a copy of the return showing service on the Commissioner. The failure to at least acknowledge Messier’s assertion that the affidavit was referring to the Commissioner’s return suggests that the court did not consider all the evidence it had before it.

SCOVT reverses imposition of a monetary discovery sanction for lying and obstructing the discovery process where the sanctioned party was in compliance with order compelling discovery.

Sidmond C. Williams & Barbara B. Williams, Co-Trustees v. Town of North Hero, 2018 VT 114 [filed 10/19/2018]

EATON, J. The Town of North Hero appeals the Property Valuation and Review Division hearing officer’s decision to impose a $2000 discovery sanction against the Town in a property-tax-reappraisal appeal brought by the Williams Living Trust. The hearing officer imposed the sanction as a result of a claimed discovery violation by the Town concerning disclosure of an electronic Excel spreadsheet file requested by the Trust. We reverse

After repeatedly being told a file did not exist in the requested format, the Trust filed motion to compel and obtained an ordering requiring the Town to make one last effort to obtain a copy of the file in the requested format . In compliance with the hearing officer’s order, the produced a copy of the Excel spreadsheet file in the format requested to the Trust. The Trust filed a motion describing the Town’s conduct concerning the file request as “blatant misconduct during discovery” and seeking monetary sanctions for the Town’s failure to produce the file earlier.

The hearing officer imposed a monetary sanction against the Town of $2000 for false statements made by Town officials and the “expenses, effort, and time” the Trust spent as a result of the Town’s failure to produce the file until ordered to do so.

This is not a case where a party was in violation of a discovery order. If the hearing officer would lack authority to impose monetary sanctions under Rule 37 of the more formal discovery process of the civil rules, it cannot be said that the authority to do so here. The rule does not permit sanctions when a party has complied with an order compelling discovery. Where the Town had fully complied with the order compelling discovery, the imposition of a monetary sanction against the Town was an abuse of discretion.

Because of our disposition of this case, we need not consider the accuracy of the hearing officer’s findings characterizing the Town’s statements concerning the existence of the file as falsehoods.

Marketable Record Title Act extinguishes, by definition, an easement by necessity over 40 years old

Gray v. Treder, 2018 VT 13 [filed 12/21/2018]


ROBINSON, J.This case centers around plaintiffs' landlocked ninety-acre parcel on Roxbury Mountain. Defendants appeal the trial court's decision following a contested hearing that the plaintiffs' parcel includes an appurtenant easement by necessity that crosses some of defendants' properties. They further contend that the trial court erred in holding that Vermont's Marketable Record Title Act has not extinguished that easement. We do not decide whether an easement by necessity arose in the first place because we conclude that even if it had, the Act would have extinguished it. Accordingly, we reverse.

The court ruled the Marketable Record Title Act did not extinguish the easement because, since it was created as a matter of law due to the effect of the 1948 recorded Brooks-Senor deed, it fell into an exception in the Act that exempts from extinguishment easements “granted, excepted, or reserved by a recorded instrument.” Id. § 604(a)(7).Defendants rely on this exception on appeal.

We conclude that even if an easement by necessity in favor of the Eaton Lot arose in 1948, because it has remained unrecorded, the Act has extinguished it. We base this conclusion primarily on the plain language of the Act and the inapplicability on its face of the extinguishment exception relied upon by plaintiffs. An implied easement by necessity is not among those interests excepted from extinguishment. Although an easement may survive pursuant to § 604(a)(7) if it was “granted, excepted, or reserved by a recorded instrument,” the claimed easement in this case was not granted, excepted, or reserved by such an instrument.

A way of necessity is not granted. It is “a fiction of law” that arises only in the absence of a deeded right of access to a landlocked parcel. An easement by necessity is deemed to arise when a property is divided in a way that cuts off one parcel from access to a public road. By definition, interests implied by operation of law, as easements by necessity are, do not fall within the statutory. Had the Legislature intended to include among the interests that are not extinguished by the Act interests that arise by operation of law in the absence of a deeded right, it would have said so. Based on the plain language of the statute, we conclude that plaintiffs’ claimed easement is not exempt from extinguishment by virtue of § 604(a)(7), and thus has not survived the operation of the Marketable Record Title Act.

The structure and purpose of the Act further bolster our analysis.The Act provides ample opportunity for people with claimed interests arising by operation of law to preserve their claims. The statute sets forth a mechanism for providing written notice in the land records, id. § 605, and provides that the claim is preserved only if the notice is filed within the forty-year period after the event giving rise to the claim. Id. § 603.

We conclude that neither the public policy against inaccessibility of land, nor the principle that statutory modifications to the common law must be clear, overcome the plain language of the statute.

SCOVT affirms denial of punitive damages for lack of evidence of defendant's wealth.

Kneebinding, Inc., John Springer-Miller, Tina Springer-Miller and ACL Investments, LLC v. Richard Howell, 2018 VT 101 [filed 10/5/2018] How cited

ROBINSON, J. This case comes to us after a lengthy bench trial. On appeal, Kneebinding and the Springer-Millers argue that the trial court abused its discretion by awarding nothing against Howell for punitive damages for defamation.  We affirm.

In its August 2016 decision, the trial court concluded that Howell’s numerous internet posts stating that Kneebinding ski bindings were defective and dangerous were false and defamatory, In a subsequent opinion released in January 2017, the court found that Howell acted with “ill will and insult,” justifying “some reasonable level of punitive damages.”

But, before deciding on the specific amount of both general and punitive damages, the court directed the parties to submit still further memoranda. The court issued its final decision on defamation damages in March 2017. 

The court explained that it had reconsidered its previous conclusion that this case merits punitive damages. Noting that there was no evidence, or even an implication, that Howell had any assets worthy of note, as well as his lack of malice against Kneebinding, the court concluded that punitive damages were not justified.

The calculation of punitive damages is,within the trial court’s discretion. See Pion v. Bean, 2003 VT 79, ¶ 44, 176 Vt. 1, 833 A.2d 1248 (noting that when evaluating punitive damage award, we defer to trial court because “[p]unitive damages by their nature cannot be precisely measured”).

The trial court did not abuse its discretion in denying punitive damages. Its conclusion that most of Howell’s ire was directed at the Springer-Millers and not Kneebinding itself was supportable on the record, and, in any event, the court’s decision not to impose punitive damages in the absence of evidence about Howell’s finances is supported by our caselaw.

"We have stated that, in assessing punitive damages, the fact-finder must take into account the character and the standing of the party, the malice or wantonness of the party’s conduct, and the party’s financial status.” Pion, 2003 VT 79, ¶ 44.

Faced with no evidence of the latter factor, the trial court reasonably declined to impose punitive damages.


SCOVT Note

The Court does not discuss its precedent that proof of a defendant's actual means or wealth is not essential to the recovery of punitive damages. See Shahi v. Madden, 2008 VT 25, ¶ 11, 183 Vt. 320, 949 A.2d 1022.

Probate proceedings involve a “series of decisions on discrete issues” that must be appealed, if ever, when the decision is made, not when the whole case is over.

In re Marjorie T. Palmer Trust,       2018 VT 134 [filed 12/21/2018]

SKOGLUND, J. This appeal stems from a probate order approving a special master’s proposed division of real property owned by a trust. The trustees of the Marjorie T. Palmer Trust appealed the probate order to the civil division, which granted summary judgment in favor of appellee David C. Palmer, a beneficiary of the trust. On appeal to this Court, the trustees claim the civil division erred in denying their motion for appellee to undergo genetic testing. The civil division denied the trustees' motion for genetic testing on the ground that the probate division had entered a final decision on that issue in October 2014, which the trustees had failed to appeal.We conclude the trustees' failure to appeal a probate order within thirty days deprived the civil division of jurisdiction to review it.

The trustees argue that the probate division's October 2014 decision on that issue was an interlocutory rather than a final order, and did not prevent them from raising the issue again in the civil division. We disagree.

An interested party may take an appeal from the probate division to the civil division "if the order appealed from is final as to the subject matter before the court." In re Estate of Seward, 139 Vt. 623, 624, 433 A.2d 274, 274 (1981); 12 V.S.A. § 2555.

An order is final if "the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court." In re Webster's Estate, 117 Vt. 550, 552, 96 A.2d 816, 817 (1953).

If a final order of the probate division is not timely appealed, the civil division lacks jurisdiction to review it.

Vermont has no statute or rule defining what specific types of probate orders are final and appealable.

A review of our decisions in this area reveals that we have frequently treated probate orders as final even where they did not dispose of the entire probate proceeding. See In re Tr. Estate of Flynn, 158 Vt. 268, 270-71, 609 A.2d 984, 986 (1992) (taking jurisdiction of appeal from probate court orders granting motions to intervene and replace trustee of estate); In re Cary's Estate, 81 Vt. 112, 121, 69 A. 736, 739 (1908) (holding that probate court order denying remaindermen's petition to compel accounting by trustee of life estate "was final as to the petitioners, and one from which they could appeal"); In re Bellows' Estate, 60 Vt. 224, 227, 14 A. 697, 699 (1888) (holding superior court erred in dismissing appeal from probate court order removing executor); State v. McKown, 21 Vt. 503, 507 (1849) (holding that guardian had right to immediately appeal probate court order removing him as guardian and appointing another).These decisions implicitly recognize that probate proceedings involve a series of decisions on discrete issues that may be appropriate for immediate review.

Courts in other jurisdictions have recognized that probate court decisions regarding whether particular individuals are heirs are final appealable orders.

It makes sense to treat an order of this type as final and appealable because the identity of heirs and beneficiaries is fundamental to a probate proceeding and resolving disputes regarding who is entitled to distribution from an estate early in the proceeding is in everyone's best interests.

For these reasons, we agree with the civil division that the October 2014 decision of the probate division was a final appealable order because it conclusively determined a discrete issue then before the court: The order left nothing to be decided with regard to the issue of whether David C. Palmer was entitled to distribution under the trust. Accordingly, the trustees' failure to appeal that order within thirty days deprived the civil division of jurisdiction to review it.

SCOVT NOTE:Palmer distinguished in In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)(probate order not appealable when attorney's fees were undecided)