SCOVT declines VRAP 5 appeal from denial of pretrial motion to suppress where conditional pleas is available.

State v. Lyford, 2016 VT 118 (mem.) (overruled by State v. Wesley Haynes, Tristan Harris and Dennis Magoon,2019 VT 44)

The criminal division of the superior court granted defendant's motion for permission to file an interlocutory appeal, pursuant to Vermont Rule of Appellate Procedure 5(b), from the court's decision denying defendant's pretrial motion to suppress and dismiss, which alleged an illegal canine search. For the reasons explained below, we dismiss the appeal as improvidently granted. See V.R.A.P. 5(b)(8) ("On its own or the appellee's motion, the Supreme Court may at any time dismiss the appeal as improvidently granted.").

Since 1989, a defendant, with the approval of the trial court and the State, may enter a conditional guilty plea while reserving the right to appeal "the adverse determination of any specified pretrial motion." V.R.Cr.P. 11(a)(2); id. Reporter's Notes-1989 Amendment. Generally, this Court does not accept interlocutory appeals of decisions denying motions to suppress in criminal cases unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.

This is consistent with our general rule that "an appeal will not lie to review the denial of a pretrial motion to suppress evidence on the claim of illegal search and seizure." State v. Blondin, 128 Vt. 613, 615-16, 270 A.2d 165, 166 (1970) (citing 13 V.S.A. §§ 7401, 7403 in support of "the general rule that an appeal should not be permitted in criminal causes until a final verdict, adverse to the appellant, has been rendered in the trial court," and noting that 12 V.S.A. § 2386 "affords limited variance to the general rule by granting discretionary authority" to the superior court "to permit an appeal before final judgment for the determination of questions of law"); see also ABA Minimum Standards for Criminal Justice, Criminal Appeals, Standard 21-1.3(b)-(c) (stating that defendants generally should not be permitted to take interlocutory appeals in criminal cases and that conditional plea procedure should be established to allow review after final judgment of decisions on contested pretrial motions such as motions to suppress evidence).

Although we recognize that on occasion this Court has accepted interlocutory appeals from decisions denying motions to suppress, in this case defendant has not indicated that a conditional plea is unavailable or impracticable under the circumstances, and the trial court has not made any findings indicating that the criteria set forth in V.R.A.P. 5(b) have been met. Accordingly, we decline to accept the appeal.




Appeal dismissed as improvidently granted.

SCOVT reverses Secretary’s reversal of Human Services Board’s reversal of Department’s denial of petitioner’s request for developmental disability services , because the Board’s factual findings that had support in the record .

In re R.R., 2019 VT 31  [filed 4/26/2019]

 

SKOGLUND, J. The fundamental issue in this case is whether petitioner should be found eligible for developmental disability services. The Department of Disabilities, Aging and Independent Living (DAIL) denied petitioner’s request for services, finding him ineligible. The Human Services Board reversed DAIL’s decision. The Secretary of the Agency of Human Services reversed the Board’s decision and reinstated DAIL’s decision. This appeal followed.

 

Before us is the question of whether a standard error of measurement is properly applied to IQ scores used to qualify persons for developmental disability services.  The SEM for an IQ test is plus or minus five points. If the SEM is taken into account, then scores at or below 75 would qualify under the regulations as “a full scale score of 70 or below”

 

We conclude that the plain language of the applicable regulations incorporates the standard error of measurement of plus or minus five points for an IQ test and, therefore, petitioner’s IQ score of 75 combined with the other evidence in the case qualified him for services.

 

 The Secretary is limited in reviewing the Board’s factual findings and may “reverse or modify factual findings in a board decision only if ‘the board’s findings of fact lack any support in the record.’”  The Secretary rejected the Board’s finding that the 2007 score was the most reasonable and appropriate basis to determine petitioner’s eligibility,   concluding that there was “no clinical basis in the record” for the finding.  Because the Board’s assessment that petitioner’s 2007 score was the most accurate reflection of his level of functioning is supported by the record, the Secretary lacked authority to reverse or modify it.

 

We conclude that the Secretary lacked authority to reverse the Board’s factual findings and erred in interpreting the regulations. Therefore, we reverse the Secretary’s decision and remand for reinstatement of the Board’s decision

 

Reversed and remanded.

SCOVT vacates and dismisses charge of disorderly conduct.

State v. Treyez L. McEachin, 2019 VT 37 [filed 5/24/2019]

ROBINSON, J. Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argues that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should be dismissed. He contends that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should be suppressed, and the assault charge should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the motion to suppress the evidence underlying the assault charge, and affirm that conviction.

A person commits the offense of disorderly conduct by “engag[ing] in fighting or in violent, tumultuous, or threatening behavior” with an “intent to cause public inconvenience or annoyance, or recklessly creat[ing] a risk thereof.” 13 V.S.A. § 1026(a)(1). The disorderly-conduct statute identifies four other bases for a disorderly-conduct charge that are not applicable here. See 13 V.S.A. § 1026(a)(2)-(5). 

On New Year’s Eve in 2016, four police officers were on foot patrol in Burlington when they received a report that a man was spitting on the window of a local bar. They went to investigate and found defendant outside the establishment.  The officers asked defendant to leave and he did, but. minutes later defendant came walking down the sidewalk back toward the bar. Officer Hodges testified that defendant “changed his trajectory so he was walking directly towards me.” He said defendant “was looking away from me . . . as if he was trying to . . . make it appear that he [wa]s not watching where he was going.” Defendant came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant back. Defendant began yelling profanities. 

We conclude that the evidence, taken in the light most favorable to the State, does not tend to show beyond a reasonable doubt that defendant , by walking toward Officer Hodges, committed the offense of disorderly conduct through fighting or violent, tumultuous, or threatening behavior, Accordingly we reverse the trial court’s denial of defendant’s motion to dismiss.

We reject defendant’s argument that because the trial court found that the officers unlawfully prolonged their encounter with him by ordering him not to walk by the bar, it should have suppressed all subsequent evidence, including the evidence that he kicked a police officer later that evening, for which he has been charged with simple assault on a law-enforcement officer. We conclude that defendant’s action in kicking the officer is causally distinct from the officers’ actions in ordering him around the bar, and thus suppression is not warranted.

Defendant’s conviction of disorderly conduct is vacated and his motion to dismiss the disorderly-conduct charge is granted. Defendant’s conviction for resisting arrest is vacated and the charge is dismissed. The denial of defendant’s motion to suppress as it relates to the acts underlying the assault charge, and his conviction on that charge, are affirmed.

Impeachment of defendant who talks is not an impermissible comment on silence.

State v. Jeremy Fischer, 2019 VT 39 [filed 5/24/2019]

REIBER, C.J. Following a jury trial, defendant appeals his conviction of sexual assault of a minor in violation of 13 V.S.A. § 3252(c). Defendant argues the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. We affirm.

Here defendant did not assert his right to silence. He spoke with Detective Tallmadge.. Under the facts of this case, commenting on defendant’s omissions does not raise the concerns of fundamental fairness and due process present in Doyle. The prosecution was free to impeach defendant based on what he said and failed to say.

Defendant argues that Ladue allows the State to comment on the omissions in defendant’s statements only when the statements made to the police are inconsistent with defendant’s testimony at trial. 2017 VT 20, ¶¶ 21-25. However, even accepting defendant’s view of Ladue, defendant offered one explanation of the events to Detective Tallmadge. Then, defendant offered a different explanation at trial. 

The fact that defendant offered two independent explanations at two distinct times raises the question of defendant’s credibility—a question that was fairly brought to the jury’s attention.

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

SCOVT reverses denial of access to criminal court record and remands for joinder of additional parties and for further proceedings.

In re Affidavit of Probable Cause (Jacob Oblak, Appellant), 2019 VT 43 [filed 6/28/2019]

SKOGLUND, J. In this matter, Jacob Oblak petitioned the superior court for access to an affidavit of probable cause filed in a criminal case and was denied. He appeals to this Court and argues that Vermont Rule of Public Access to Court Records 6(b)(24), which excludes from public access records filed in a criminal proceeding when no probable cause has been found, was not intended “to transform traditionally public documents [including affidavits of probable cause] into secret ones.” He further argues that the lower court’s interpretation of Rule 6(b)(24) violates the First Amendment.

Because we find that the lower court should have considered his petition in light of the “Exceptions” provisions of Rule 7, we reverse and remand. V.R.P.A.C.R. 7(a)(3).

We remand this matter to the civil division of the superior court for a determination that circumstances exist that weigh in favor of or against access to the requested documents. The process contemplated by Rule 7(a) affords “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs . . . a right to notice and hearing before such order is issued.” Arguably, this would include the state’s attorney who filed the affidavit and W.R. and his counsel. We leave it to the court below to decide if other entities are necessary for resolution of this issue and to consider again petitioner’s First Amendment challenge as part of the analysis under Rule 7.

With proper parties present, the court will be able to assess whether “a specific showing of substantial harm to public or private interests” would overcome any right of access. In re Sealed Documents, 172 Vt. at 154, 772 A.2d at 521.

A defendant in a criminal action may seek interlocutory review under VRAP 5 without showing that a conditional guilty plea is not practicable or available before seeking such interlocutory review (overruling State v. Lyford, 2016 VT 118.),

State v.  Haynes, 2019 VT 44 [filed 6/28/2019]

PER CURIAM. Defendants move to reconsider this Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea.

In January 2019, this Court dismissed the interlocutory appeals quoting State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted “ ‘unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.’ ”

Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met.

In 1971 the Legislature amended § 2386 into separate subdivisions relating to civil and criminal cases. Subdivision (a) regarding civil actions provided that appeals before final judgment for questions of law “may be taken in such manner and under such conditions as the supreme court may by rule provide.” 1971, No. 185, § 57. Subdivision (b) maintained the existing language of the statute, providing that the trial court in its discretion and before final judgment may permit an appeal to be taken by the respondent or the state in a criminal cause.

Following the statutory amendment and the promulgation of Appellate Rule 5, three main themes have been consistent in this Court’s decisions regarding interlocutory appeals by defendants in criminal cases. First, review of denials of motions to suppress in criminal cases are interlocutory and not reviewed as of right until after final judgment. Second, denials of motions to suppress usually do not meet the criteria in  Appellate Rule 5. Id. Third, this Court has the authority to dismiss interlocutory appeals, even when certified by the trial court.

In 1989, Rule 11 of the Vermont Rules of Criminal Procedure was amended to authorize conditional guilty pleas. See V.R.Cr.P. 11(a)(2). The conditional guilty plea was designed to allow defendants who were not eligible to appeal through interlocutory means to get appellate review of pretrial motions without having to go through an entire trial. The Court continued to both grant and deny interlocutory appeals filed by defendants in criminal actions without reference to the availability of a conditional guilty plea.

Upon consideration, we overrule Lyford to the extent that it holds that a defendant is precluded from seeking interlocutory appeal through Appellate Rule 5 if a conditional guilty plea is available. 

 In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

An interlocutory appeal is appropriate where the order is a “controlling question of law about which there exists substantial ground for difference of opinion” and “an immediate appeal may materially advance the termination of the litigation.” V.R.A.P. 5(b)(1)(A), (B). Regardless of whether the trial court has determined that a case is appropriate for interlocutory appeal, this Court retains authority to dismiss an appeal if the trial court abused its discretion in allowing it.

We review the trial court’s decision to grant interlocutory appeal for an abuse of discretion.. Here, we do not have an explanation of the reasons that the trial court exercised its discretion. Although the court has discretion to allow an interlocutory appeal, it must provide at least some basis for this Court to determine how that discretion was exercised. Therefore, we dismiss the appeals to allow the trial court to issue a new decision providing the grounds for its decision on the motion for interlocutory appeal.

Upon reconsideration, the interlocutory appeals are dismissed without prejudice to defendants refiling after the trial court issues a decision. 

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SCOVT NOTE.ON OVERRULING RECENT PRECEDENT

The Court has recognized the importance of the doctrine of stare decisis, and has noted that, although the Court is not "slavish adherents" to this doctrine, it does not "lightly overturn recent precedent," especially where the precedent could be changed easily by legislation at any time.  O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.)


State v. Haynes overrules a three-year-old case. But this is not a record. See Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (order being appealed need not be specified in the notice of appeal, overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking V.R.A.P 3(a) (an appeal from a judgment preserves all claims of error in the record)).

SCOVT reinstates jury verdict for plaintiff repair shop, construing collision coverage as promise to pay the amount of money needed to repair an insured vehicle to preaccident condition, regardless of the amount the insurer deemed sufficient to do the repairs.

Parker's Classic Auto Works, Ltd. v. Nationwide Mutual Insurance Company, 2019 VT 46 [filed 6/28/2019]

CARROLL, J. Plaintiff appeals a judgment entered in favor of defendant following a trial in which a jury determined that defendant breached an insurance contract with plaintiff’s assignors. The jury awarded plaintiff $41,737.89 in damages. After the trial the superior court concluded that, as a matter of law, plaintiff could not show that his assignors were damaged by a breach of contract by defendant. We reverse this determination, vacate the judgment that was entered in favor of defendant, and remand with direction to the superior court to reinstate the jury’s verdict and its award of damages.

Over seventy insurance claims, which all arise under identical insurance policies, have been combined in this breach-of contract case. For each insurance claim plaintiff repaired a car belonging to an insured, restoring it to preaccident condition, and, after receiving a post-loss assignment from an insured, submitted itemized bills to defendant to recover for its services. In each instance, defendant paid less than what plaintiff had billed to complete the repair. The difference between the cost of repair billed by the repair shop and the amount paid by the insurance company—to whatever extent it is covered by the insurance policy—is called a short pay in the collision-repair industry.

The jury returned a verdict finding defendant liable for breach of the insurance policy and awarding plaintiff $41,737.89.  Defendant filed a renewed motion for judgment as a matter of law under Vermont Rule of Civil Procedure 50(b), which the court granted. The court reasoned that the insureds could not have sued defendant for sums that were entirely within defendant’s discretion to award.

The trial court interpreted the insurance policy, which was silent on the matter, to only 

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SCOVT NOTE ON THE LAW OF PETS

©2009- 2023 Allan R Keyes, Esq., all rights reserved


The finder of a lost dog, by caring for it and sheltering it for over a year, became its rightful owner. Morgan v. Kroupa, 167 Vt. 99 [filed September 5, 1997], noting that courts simply cannot evaluate the “best interests” of an animal.

Town, under dog control ordinance, validly transferred possessory interest in a lost dog to adoptive owners, even though the true owner was known. Lamar v. North Country Animal League, 170 Vt. 115 [filed November 12, 1999], noting that although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal would be unsuccessful.

Pets are not subject to the law of conversion-- but a horse is. Hegarty v. Addison County Humane Society, 2004 VT 33 [filed April 2, 2004], noting that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests.

No damages may be awarded for lost companionship or emotional distress resulting from the wrongful death of a cat. Goodby v. Vetpharm, 2009 VT 52. [filed May 8, 2009] noting that there may be a more appropriate measure of damages for the tangible loss of pets due to the negligence of others based on the particular pet’s value to its owner, beyond simply its value to a stranger in the market.

Cat precedent applies to dogs. Court refuses noneconomic damages for the malicious destruction of pet dog. Scheele v. Dustin, 2010 VT 45 [filed May 21, 2010] noting that pets occupy a legal realm somewhere between chattel and children.

Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition. Hament v. Baker, 2014 VT 39 [filed April 25, 2014] noting that, in contrast to a child, a pet is not subject to a custody award following a determination of its best interests; but that, in awarding the dog to one of the parties the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse.

Family Division "Pet allocation"  order properly considered, under Hament ,  that  husband’s denial of visitation during separation showed lackof "regard “for the pet's emotional attachment to wife” LaRiviere v. Shea, 2023 VT 37(divided Court )

Liability for dog bite is based on negligence. Martin v. Christman, 2014 VT 55 [filed 13-Jun-2014], reaffirmiing the Court's longstanding rejection of strict liability in dog bite cases, and noting that, with the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.

Landowner had no duty to passing motorist to prevent escape of horse not in his control. Deveneau v. Wielt, 2016 VT 21 [filed March 4, 2016].

Search warrant for dogs was not overbroad in part because the law may provide protection to dogs in their own right “as living, sentient beings.” State v. Sheperd, 2017 VT 39 [filed June 2, 2017].

Although tenant was entitled to an emotional assistance animal, reasonable accommodations did not extend to the specific animal found to be a threat to others. Gill Terrace Retirement Apartments, Inc. v. Johnson, 2017 VT 88 [filed October 6,2017].

Neither landlord nor guest of tenant/dog-owner owed a duty to passerby injured when pit bull escaped because they had no "reason to know" that the dog in question posed an unreasonable risk. Gross v. Turner, 2018 VT 80 [filed August 10, 2018], noting that landlords are not obligated to conduct background checks on tenants’ pets and that a dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm.

Pets are not subject to the law of conversion-- but a horse is.

Hegarty v. Addison County Humane Society, 2004 VT 33 [filed April 2, 2004}

SKOGLUND, J.On suspicion of inadequate care, defendant Addison County Humane Society (ACHS) seized Suzanne and Elizabeth Hegarty's elderly mare, Paka. The Hegartys sued ACHS in Addison Superior Court alleging claims for conversion and intentional infliction of emotional distress. The superior court granted ACHS's motion for summary judgment and the Hegartys appealed. we affirm.

The Hegartys argue that when ACHS seized Paka it unlawfully withheld possession of their property in exclusion and defiance of their right and the court should have found a conversion as a matter of law.

Initially Hegartys  contend that the trial court erred when it relied on Morgan v. Kroupa to characterize Paka as a pet and thus not subject to a conversion claim. 167 Vt. 99, 103-05, 702 A.2d 630, 633-34 (1997). We agree.

The trial court correctly cited Morgan for the proposition that, in the context of a conversion claim, the property interest in pets is of such a highly qualified nature that it may be limited by overriding public interests. Id. at 105, 702 A.2d at 634. We do not quarrel with this analysis, but rather with the court's suggestion that our Morgan ruling supports characterizing Paka as a pet.

 In Morgan, we explicitly distinguished between pets — dogs, cats, and hamsters — and "agricultural animals with substantial economic value." Id. The fact that a horse may also be considered a pet by its owner does not remove it from the category of agricultural animal with respect to the property interests at issue in a conversion claim. Id. Paka is not a pet and the trial court's ruling to the contrary was in error.

There is no dispute that the Hegartys are Paka's rightful owners or that, by seizing the horse, ACHS was withholding possession of Paka from them. The question is whether that deprivation was lawful. . . . 

Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiffs-Appellants.. . .

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Search warrant for dogs was not overbroad in part because animals are living, sentient beings to which the law may provide protections in their own right

State v. Sheperd, 2017 VT 39 [Filed June 2, 2017]

ROBINSON, J. In this case involving multiple counts of cruelty to animals, defendant appeals the trial court's denial of a motion to suppress arguing that: the warrant was unconstitutionally broad in allowing the search for and seizure of any animal found at defendant's home. We affirm on this issue.

We reject defendant's argument that the warrant was unconstitutionally broad because it authorized the officers to search for and remove any animals, although the warrant only listed two specific pit bulls. Probable cause in this case supported the warrant's full scope and the warrant's language was sufficiently particular. We conclude on the record of this case that once the animal control officer established probable cause concerning the dog on the porch, she had probable cause to search for and seize all dogs at defendant's home.

Additional considerations come into play when a warrant calls for the search for and seizure of animals. This Court has recognized that nonhuman animals occupy a unique legal status in that they have traditionally been regarded as property but are nonetheless "different from other property." Hament v. Baker, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461. Accordingly, animals "generally do not fit neatly within traditional property law principles," but instead "occup[y] a special place somewhere in between a person and piece of personal property." Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (quotation omitted). 

Various laws limit peoples' ownership rights over animals, requiring them to provide a minimum level of care to animals in their possession and prohibiting them from treating animals the same way they might treat true, nonsentient property. See, e.g., 13 V.S.A. §§ 352, 352a (criminalizing cruelty to animals); id. § 386 (prohibiting confinement of animals in motor vehicles when conditions are dangerous, and allowing state agents to remove animals from a vehicle to prevent harm). This special treatment of animals reflects a recognition that animals are living, sentient beings to which the law may provide protections in their own right. Hament, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461.

Animal welfare is a factor we must consider when determining whether a search or seizure was lawful

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SCOVT affirms summary judgment that dog control ordinance validly transferred possessory interest in a lost dog to adoptive owners.

Lamare v. North Country Animal League, 170 Vt. 115 [Filed November 12, 1999]


MORSE, J. Plaintiffs Chasidy Lamare and Charles Arnold appeal a summary judgment of the Lamoille Superior Court in favor of defendants North Country Animal League, Darcie Fitzgerald, and John and Jane Doe. Plaintiffs raise numerous claims challenging the court's ruling that their possessory interest in a lost dog had been transferred to defendants under the Town of Wolcott's dog control ordinance. We affirm.

Plaintiffs were the co-owners of a five and one-half year old female German Shepard named Billy who was found at large by a couple who brought her to the Lamoille Kennel on June 3, 1997,which in turn gave her up for adoption on July 8, even though on July 7, plaintiffs arrived at the League and identified their dog.

This case, in contrast to Morgan, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances.

In this case we are bound to conclude that the town's actions fully complied with its animal control ordinance and that its ordinance provided ample notice to plaintiffs consistent with state law and due process requirements.

We conclude that the provision of the ordinance authorizing the town to sell or otherwise dispose of the animal in a humane fashion constituted a necessary and essential power under the enabling statute, and therefore did not exceed the town's authority

We also conclude that the qualified right to possession of dogs and the strong public interest in assuring their permanent placement in a suitable environment, amply supports the town's decision to provide for the sale or transfer of impounded dogs if unclaimed after seven days.

Morgan recognized that a dog is an inherently social creature whose “value derives from the animal's relationship with its human companions.” Thus, while municipal shelters or pounds may provide temporary safety for the public and security for the animal, long term residence in such facilities is decidedly not in the public's or the animal's interest.

We note in this regard the several studies cited in the amicus curiae brief of The United States Humane Society which demonstrate that long term confinement is severely detrimental to the health of dogs and a considerable expense to the impounding agency.

The owner of a lost dog may be expected to make reasonable efforts to locate an animal by contacting humane societies and other agencies and checking other public locations where notices may be posted. Only in the limited circumstances where the owner of a lost dog has not complied with the license requirements, and has failed to take the reasonable steps of inquiring with the local pound or checking notices in the town office and other public places, is it possible that an owner will fail to receive notice within the seven-day notice period. The fact that plaintiffs in this case did not take these reasonable steps does not render the ordinance unconstitutional.

We conclude, in sum, that the town's posting of descriptive notices in the town clerk's office, post office, and village store—in conformity with the ordinance—did not deprive plaintiffs of their constitutional right to due process.

The actions of the League in this case was, to say the least, insensitive in its dealings with plaintiffs. Although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal—a claim not alleged here—would be unsuccessful.

Beth Robinson of Langrock Sperry & Wool, for Amici Curiae the Humane Society of the United States.

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SCOVT Note. The Court's suggestion that an action would lie for "the emotional distress or other damages resulting from the negligent handling of an impounded animal" was premature. See Scheele v. Dustin , 2010 VT 45 (affirming judgment denying recovery for emotional damages for the intentional killing of a pet dog); Goodby v. Vetpharm, 2009 VT 52 (denying recovery for lost companionship and emotional distress resulting form death of pets.)

Divided Court affirms ruling that finder of lost dog, by caring for it and sheltering it for over a year, became its rightful owner.

Morgan v. Kroupa, 167 Vt. 99 [filed September 5, 1997]

MORSE, Justice. Defendant Zane Kroupa appeals from a judgment awarding possession of a dog named Boy (a/k/a Max) to plaintiff Mary Morgan. We affirm.

Defendant adopted a mixed-breed puppy when it was six to eight weeks old and trained it to be a hunting dog. In July 1994, when the dog was five years old, it broke free of its collar, ran away and became lost. About two weeks later, plaintiff found the and brought it home. Plaintiff took care of the dog and fed and sheltered it.  In September 1995, a friend of defendant's told him that he had seen the dog at a house only two miles down the road. Defendant drove to the house, the dog jumped in his truck and defendant left with the animal.

Shortly thereafter, plaintiff brought this action in replevin to recover the dog. The trial court, sitting without a jury, ruled in favor of plaintiff and returned Max to her. The court refused  to analogize the case to a child custody case, and inquire into what was in the “best interests” of the dog. The court instead ruled that plaintiff had “substantially compl[ied]” with the lost-property statute and was therefore entitled to possession.

Modern courts have recognized that pets generally do not fit neatly within traditional property law principles. No decision has ever applied the lost-property statutes to any kind of “beast” other than a farm animal of considerable value. Ordinary common law or statutory rules governing lost personal property do not provide a useful framework for resolving disputes over lost pets. Instead, courts must fashion and apply rules that recognize their unique status, and protect the interests of both owner and finder, as well as the public.

However strong the emotional attachments between pets and humans, courts simply cannot evaluate the “best interests” of an animal. When confronted with a case of this nature, therefore, courts should factor practical and policy considerations into any decision. Finders of stray pets should be encouraged to make every reasonable effort to find the animal's owner.Owners of lost pets should be enjoined to undertake reasonable efforts to locate their animals..

Indeed, this was essentially the approach taken by the trial court here. Having found that plaintiff diligently attempted to locate the dog's owner and responsibly sheltered and cared for the animal for over a year, the trial court was clearly within its discretion in awarding possession to plaintiff.

Possession of domestic pets may be, and often is, limited by overriding public interests. In this case, as explained above, the public interest in encouraging finders to care for and shelter lost pets necessarily qualifies the owner's right to possession. Where, as here, the finder of a lost domestic animal diligently attempts to locate its owner and provides care, shelter and companionship to the animal for over a year, a trial court does not abuse its discretion in awarding possession to the finder.

GIBSON, Justice, dissenting. Because I believe that Vermont's lost-property statute, 27 V.S.A. §§ 1101–1110, rejected by the Court herein, outlines the rights and responsibilities of both true owners and finders of stray domesticated animals, including dogs, and that, under the provisions of that statute, Boy (a/k/a Max) should be returned to defendant, I respectfully dissent The statute provides a clear, consistent, and just approach to settling disputes between finders and owners of stray domesticated animals, and  includes safeguards to protect pet owners from theft. I am authorized to say that Chief Justice Allen joins in this dissent.


Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellee.

all 85 citing documents 

SCOVT NOTE. Morgan is cited in:

• Lamare v. North Country Animal League, 170 Vt. 115 (1999) (possessory interest in a lost dog was validily transfered to adoptive owners under dog control ordinance. "Morgan involved a dispute between private parties and was governed by common law principles. This case, in contrast, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances" )

• Goodby v. Vetpharm, 2009 VT 52 (no damages for lost companionship or emotional distress resulting from wrongful death of a cat. In both Morgan and Lamare, . . ., the dogs at issue remained personal property despite their recognized human attachments, and their intangible value in monetary terms was never considered or addressed.")

• Hegarty v. Addison County Humane Society, 2004 VT 33 (Pets are not subject to the law of conversion-- but a horse is. In Morgan, we explicitly distinguished between pets — dogs, cats, and hamsters — and "agricultural animals with substantial economic value.")

• Scheele v. Dustin, 2010 VT 45 (refusing noneconomic damages for the malicious destruction of pet dog, though "We have noted in the past that categorizing a beloved pet as mere property fails to recognize that such an animal's "worth is not primarily financial[;] ... its value derives from the animal's relationship with its human companions.")

• Hament v. Baker, 2014 VT 39 (Family Division has no authority to award visitation or joint custody of pets, but welfare of the animal must be considered in final disposition. "Like most pets,[a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions.")

• State v. Sheperd, 2017 VT 39 (Robinson J.) (search warrant for dogs was not overbroad in part because animals are living, sentient beings to which the law may provide protections in their own right. Animals "generally do not fit neatly within traditional property law principles," but instead "occup[y] a special place somewhere in between a person and piece of personal property.")

"Indeed, pets occupy a legal realm somewhere between chattel and children." Schelle, 2010 VT 45 ¶ 17

Divided Court reverses dismissal on grounds of lack of personal jurisdiction of breach of warranty action against out-of-state horse sellers whose sole contact with state was national advertising.

Dall v. Kaylor, 163 Vt. 274 (1995) 

MORSE, Justice. Plaintiff Dall appeals the trial court's dismissal of her claim for lack of personal jurisdiction. Dall, a Vermont resident, brought suit in Rutland Superior Court against Maryland defendants for breach of warranty arising from the purchase of a Hanoverian horse. Defendant Baron, a Maryland resident and owner of the horse, hired defendants Kaylor and Westphalian Pride Farm to sell it. Defendant Kaylor, d/b/a Westphalian Pride Farm, is a horse breeder and trainer in Maryland. Defendant Westphalian Pride Farm holds itself out as a breeder and developer of “world-class” Hanoverian horses. The horse sustained injuries during its trip to Vermont. A veterinarian's treatment of these injuries led to the discovery that the horse suffered from congenital and chronic bone disease in his rear legs. The sole issue is whether defendants' contacts with Vermont were sufficient to confer personal jurisdiction in Vermont. The trial court granted defendants' motion to dismiss for lack of jurisdiction. We reverse.

Defendants here were in the business of selling horses; they held themselves out as “breeder[s] and developers of world class registered Hanoverians.” Defendants initiated the resulting business transaction by advertising, more than one hundred times, in a national market that included Vermont.

It is hardly unfair for Defendants argue that they did not affirmatively seek to do business with any Vermont resident by placing classified advertisements in a nationally circulated publication defendants to defend themselves in jurisdictions where they choose to advertise their products. We hold that assertion of personal jurisdiction over defendants will not offend “traditional notions of fair play and substantial justice.”

ALLEN, Chief Justice, dissenting. The constitutional touchstone for personal jurisdiction is “whether the defendant purposefully established ‘minimum contacts' in *the forum State.”

I fail to see how the placement of an advertisement in a national publication, without more, is an act purposefully directed at Vermont.   The frequency of an activity does not, alter the nature of that conduct or convert it into conduct deemed to be directed at the citizens or state of Vermont. Defendants either availed themselves of the “benefits and protections” of Vermont's laws, or they did not. It should make no difference whether defendants advertised once or a hundred times. 

This exercise of jurisdiction exceeds the limits imposed by the Due Process Clause of the Fourteenth Amendment.

I am authorized to say that Justice Dooley joins in this dissent

Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellant