SCOVT 2020 SUMMARIES

 

 

SCOVT 2020 SUMMARIES © 2020 Allan R. Keyes, Esq., all rights reserved

LAW OF THE CASE Modification of parenting schedule. Fabiano v. Cotton, 2020 VT 85 (affirms order modifying parenting schedule; trial court has discretion to revisit a prior ruling)

LAW OF THE CASE APPEALS Inadequate briefing Contempt   Kneebinding, Inc. v. Richard Howell, 2020VT99 (affirms contempt ruling based on violation of court order though the underlying order is subject to collateral attack, in part because of inadequate briefing.)

ATTORNEY FEES Parental Rights Randall v. Hooper, 2020 VT 32 (affirms denial of request for attorney fees in proceeding to modify parental rights, because trial court did not abuse its equitable discretion.)

ATTORNEY’S FEES INVITED ERROR Bourdeau Bros.,Inc. v. Boissonneault Family Farm, Inc., 2020 VT 35 (REMANDS for the trial court to reconsider whether plaintiff is entitled to attorney's fees, but otherwise affirms the judgment in collection action finding defendant’s principal personally liable.)

ATTORNEYS Rules of Admission  In re Anderson, 2020 VT 75 (Denying the application of Michael Anderson for admission to the Vermont Bar is denied for failure to demonstrate good moral character.)

ATTORNEYS Rules of Admission. In re Birt, 2020 VT 55 (affirms  denial of application to sit for the Vermont bar exam because of applicant’s  failure to meet the requirements of Rule 9(b)(1) that  an applicant sit for the bar exam within five years of completing the Law Office Study Program.)

ATTORNEYS Disbarment. In re Wysolmerski, 2020 VT 54 (disbarring attorney for dishonesty)

ATTORNEYS Discipline. In re Legus, 2020 VT 40 (suspends license to practice law pending final disposition)

ATTORNEYS Discipline In re Legus, 2020 VT 49 (denies motion to dissolve interim suspension of license to practice law.)

ATTORNEYS Disbarment In re McCoy-Jacien,2020 VT 42 (mem) (reciprocal disbarment for failure to cooperate with disciplinary authorities)

ATTORNEYS: Discipline In re Adamski, 2020 VT 7 (30-day suspension from practice of law for dishonest and deceitful conduct when respondent intentionally tried to conceal a settlement check from her firm's partners.)

CONTRACTS. CHANGE ORDERS Construction Drilling, Inc. v. Engineers Construction, Inc., 2020 VT 38 (DIVIDED COURT affirms ruling that contractor was required to request a change order before it billed for "drilling in obstructions" in excess of bid price)

CONSUMER PROTECTION. Alpine Haven Property Owners' Association, Inc. v. Deptula, 2020 VT 88 (affirms summary judgment in favor of homeowner association in collection action for homeowner fees; Defendants’ consumer protection claims fail as a matter of law because there was no actionable misrepresentation or other "abusive act")

EDUCATION. ACT 46 VT CONSTITUTION Athens School District v. Vermont State Board Of Education,  2020 VT 52  (DIVIDED COURT affirms summary judgment dismissing school districts claim, regarding the involuntary merger of school districts, holding that Agency's and Board's implementation of the law  was consistent with the challenged Acts and other statutes in Title 16, did not result from an unlawful delegation of legislative authority, and did not violate any other constitutional provisions.)

EDUCATION. ACT 46. VT CONSTITUTION. Huntington School District v. Vermont State Board of Education, 2020 VT 53 (DIVIDED COURT affirms dismissal/ judgment on the pleadings of complaints challenging involuntary merger of school districts.)

FIREWORKS LAW. Green Mountain Fireworks, LLC v. Town of Colchester, 2020 VT 64(affirms dismissal of appeal of denial of firework permit, and dismissal of action seeking declaratory ruling that no permit was needed.)

HEALTH CARE. CERTIFICATE OF NEED. In re ACTD LLC, 2020 VT 89 (affirms Certificate of Need restrictions and reporting requirements when issuing a Certificate of Need the Board has the power to impose any conditions that it finds are necessary to further the purpose of the statute. )

INSURANCE Limits of liability. Progressive Northern Insurance Company v. Muller, 2020 VT 76 (affirms summary judgment for insurer, applying set off provision to case with multiple claimants)

INSURANCE Time to sue. Brillman v. New England Guaranty Insurance Company, Inc., 2020 VT 16 (REVERSES summary judgment for homeowner, ruling that “date of loss” in insurance policy refers to date of to the event causing damage , not date of breach – but remanding to determine whether insurer waived time limit for suit)

MUNICIPAL LABOR RELATIONS Town of Bennington v. Knight, 2020 VT 17 (REVERSES small claims award in municipal employment dispute, holding the collective bargaining agreement supersedes conflicting individual employment agreement.)

MANDAMUS Public Records Constitutional Law Wool v. Office of Professional Regulation, 2020 VT 44 (affirms dismissal of mandamus action for failure to state a claim against OPR because petitioner does not have a right to the records under either the Fourteenth Amendment or Article 10)

PROBATE. Breach Of Contract For Mutual Wills In re Estate of McHugo,2020 VT 59 (affirms decision of probate division allowance of will but concluding that alleged contract for mutual wills may be enforced through a breach-of-contract claim.)

PROCEDURE FAMILY. Judgments Blake v. Petrie, 2020 VT 92 (DIVIDED COURT REVERSES denial of motion to dismiss action to enforce divorce judgment, holding the action was barred by the statute of limitations because the judgment was not renewed in an independent action within the required time. A motion filed in the family division does not satisfy the requirement of 12 V.S.A. § 506 that a party seeking to renew a judgment file a "new and independent action on the judgment within eight years after the rendition of the judgment." )

PROCEDURE Inadequate Findings State v. Huston, 2020 VT 46 (REVERSES denial of civil license suspension and remands for findings because court failed to make any findings on evidence which were essential to the disposition of an issue before the court.)

PROCEDURE Standing Fortieth Burlington, LLC v. City of Burlington, 2020 VT 45 (affirms summary judgment that plaintiff lacks standing to challenge parkway project)

PROCEDURE Standing Friends of Pine Street v. City of Burlington, 2020 VT 43 (affirms summary judgment dismissing -- for lack of standing -- appeal from necessity order for parkway project.)

PROCEDURE Class Actions Mullinnex v. Menard, 2020 VT 33 (REVERSES class action certification because, no member of the putative class succeeded in exhausting his administrative remedies – a jurisdictional prerequisite)

PROCEDURE Stays, interlocutory appeals Vermont Federation of Sportsmen's Clubs v. Birmingham, 2020 VT 27 (Mem) (Affirms, as collateral final order, the discretionary denial of stay pending outcome of related case in Supreme Court presenting issue of constitutionality of a state statute banning large-capacity magazines.)

PROCEDURE. MOOTNESS. ABATEMENT. Maier v. Maier, 2020 VT 63 (dismisses interlocutory appeal questions in divorce case because mooted by death of a party.)

PROCEDURE. Rule 60. Relief for Late Notice of Judgment. Brandt v. Menard,2020 VT 61 (REVERSES denial of Rule 60(b) motion for relief from judgment) and remands to consider whether any failure to receive notice of the judgment could provide a basis for relief under Rule 60(b )so as to enable appeal)

PROCEDURE.  intervention.  EMINENT DOMAIN. Highways. Agency of Transportation v. Timberlake Associates, 2020 VT 73 (REVERSES denial of Rule 24 motion to intervene of right in highway condemnation case.)

PUBLIC UTILITY LAW. Issue Preclusion? in Re Joint Petition Of Champlain Broadband, LLC, 2020 VT 5 (affirms PUC order approving sale of Burlington Telecom assets because of unappealed prior order addressing issues)

REAL ESTATE Ancient Roads Bartlett v. Roberts, 2020 VT 2 (affirms summary judgment to defendants because it determined that road that passes through plaintiff's property to access defendants' adjacent property was a public highway established by the town in 1800 that was never discontinued, and was not discontinued by operation of Act 178)

REAL ESTATE Ancient Roads Doncaster v. Hane, 2020 VT 22 (affirms ruling that class 4 road was not discontinued by operation of Act 178, Vermont's ancient-road law, when the town did not include it on the town highway map by July 1, 2015)

REAL ESTATE. ROAD ASSESSMENTS. Khan v. Alpine Haven Property Owners' Association, Inc., 2020 VT 90 (affirms summary judgment  that homeowner required to pay road  assessments, because homeowners  have the right to use all of the roads and it is reasonable and equitable for them to contribute toward their upkeep whether they use them or not.)

REAL ESTATE. Trespass. Easements. Vt Reinvestments, LLC v. Montchilly, Inc., 2020 VT 77 ( in dispute between neighboring property owners over the scope and enforceability of two express easements, REVERSES order requiring defendant  to remove portions of a fence and remands for entry of judgment  on trespass counterclaim; affirms judgment that plaintiff is bound by a reciprocal easement allowing a drainpipe over its property)

RESTITUTION McLaren v. Gabel, 2020 VT 8 (REVERSES for entry of a revised award and separate final judgment a restitution award arising out contributions to the purchase and renovation of real property)

STALKING Juveniles. TC v. LD, 2020 VT 19 (REVERSES dismissal of complaint against minor for stalking or sexual assault. holding the statute does not require defendants in such protection-order cases to be adults.)

STALKING. Scheffler v. Harrington, 2020 VT 93 (REVERSES relief from abuse order because, there is no evidence that defendant was closely watching or observing plaintiff when he drove by her home and honked his horn; “sending a  message” is not stalking.)

STALKING. Hinkson v. Stevens, 2020 VT 69 (DIVIDED COURT REVERSES civil stalking order because calling plaintiff's cell phone repeatedly, watching her in a coffee shop and other conduct did not rise to the level of stalking,)

STATE LABOR RELATIONS.  In re Grievance of Welch, 2020 VT 72 (affirms in part and REVERSES and remands in part Labor Board ruling in grievance case alleging violation of collective bargaining agreement.)

STATE LABOR RELATIONS. In re Grievance of Carnelli, 2020 VT 12 (REVERSES labor board decision that grievant was qualified for reemployment)

TAX APPEAL Valuation Martinez v. Town of Hartford, 2020 VT 70 (affirms hearing officer valuation of property at a value different that paid in recent arms-length sale.)

TAX APPEAL, GRIEVANCE PROCEDURE Hartland Property LLC. v. Town of Hartland, 2020 VT 56 (affirms trial courts affirmance of property tax assessment, ruling that the assessment was valid even though the listers began the grievance hearings two days after the statutorily designated start date.)

TAX APPEAL. Valuation Procedure Jackson Gore Inn v. Town of Ludlow, 2020 VT 11 (affirms PVR reduction of tax appraisal of time share; units and common property need not be considered separately.)

TAX EXEMPTION Foreign Corporations Zlotoff Foundation, Inc. v. Town of South Hero, 2020 VT 2 (affirms denial of refund of property tax paid by otherwise exempt charity while an unregistered foreign corporation.)

TAXATION. CAPITAL GAINS. PENALTIES. Vermont National Telephone Company v. Department of Taxes, 2020 VT 83 (affirms Tax Commissioner $445,222 penalty for failure to report $1,947,43 tax due on capital gains on sale of FCC licenses)

TORTS Restatement (Second) of Torts § 324A; Duty to third persons Newton v. Preseau, 2020 VT 50 (affirms summary judgment dismissing injury claim against defendants associated with the state-designated vehicle inspection station, concluding that any legal duty owed by inspectors to third persons under Restatement (Second) of Torts § 324A does not extend to plaintiff under the circumstances of this case, which did not involve operation of a vehicle.)

TORTS Municipal Immunity Civetti v. Turner, 2020 VT 23 (DIVIDED COURT REVERSES dismissal of Town as premature, holding Town assumes the Road Commissioner's place and therefore may not assert municipal immunity for negligence in performing a ministerial function,)

TORTS. DRAM SHOP. WRONGFUL DEATH Recovery available to unborn child. Boland v. Estate of Smith, 2020 VT 51 (affirms denial of motion to dismiss dram shop claim brought on behalf of one who was a “previability fetus” at time of parent’s death. Because she was born alive fetal status at the time of her father's death law does not preclude plaintiff’s DSA recovery as a “child” injured in means of support.)

UNEMPLOYMENT BENEFITS Chittenden County Sheriff's Department v. Department of Labor, 2020 VT 4 (affirms ruling that “reimbursing employer” is liable for unemployment benefits erroneously paid to former employee)

ZONING AND LAND USE ACT 250 In re Diverging Diamond Interchange Act 250 (R.L. Vallee, Inc.), 2020VT98 (affirms grant of ACT 250 permit for reconfiguration of interstate exit)

ZONING AND LAND USE In re Mountain Top Inn & Resort, 2020 VT 57 (DIVIDED COURT affirms summary judgment that Resort did not need to amend its Act 250 permit to rent out private homes near the Resort.)

ZONING and LAND USE In re Hopkins Certificate of Compliance, 2020 VT 47 (affirms dismissal of appeal from Development Review Board as barred by the exclusivity-of-remedy provision in 24 V.S.A. § 4472.)

ZONING AND LAND USE PLANNED UNIT DEVELOPMENT In re Snyder Group, Inc., 2020 VT 15 (REVERSES environmental division summary judgment in favor of neighbors and enters judgment for PUD applicant, ruling that bylaw is not invalid nor unconstitutionally vague.)

TERMINATION OF PARENTAL RIGHTS In re AM, 2020 VT 95 (affirms termination of parental rights)

TERMINATION OF PARENTAL RIGHTS In re CB, 2020 VT 80 (affirms termination of parental rights)

TERMINATION OF PARENTAL RIGHTS In re AW, 2020 VT 34 (REVERSES termination or parental rights. Court lacked authority to modify the disposition order to terminate parental rights because children did not agree to termination and no hearing was held to determine whether termination was in their best interests.)

TERMINATION OF PARENTAL RIGHTS In re HT, 2020 VT 3 (DIVIDED COURT affirms termination of parental rights despite claim of unconstitutional delay)

TERMINATION OF PARENTAL RIGHTS Barrows v. Easton, 2020 VT 2 (VACATES and remands for amended findings and order consistent with statutory requirement that parental rights and responsibilities be "primarily or solely" to one parent.)

TERMINATION OF PARENTAL RIGHTS In re CLS, 2020 VT 1 (affirms challenge to termination of parental rights during CHINS proceeding because not timely appealed)

FAMILY LAW. Clearly erroneous findings. Theberge v. Theberge, 2020 VT 13, (REVERSES and remands for corrected and additional findings regarding denial of defendant's post-judgment motion to enforce the cost-of-living adjustment (COLA) to a spousal-maintenance award)

FAMILY. De Facto parent Ashton Peralta v. Ashlie Brannan 2020 VT 100 (Affirms de facto parent ruling)

FAMILY. De Facto parent Lanfear v. Ruggerio, 2020 VT 84 (affirms the family division's decision declining to adjudicate polyamorous partner as a de facto parent)

FAMILY. justiciability Doe v. Department For Children And Families, 2020 VT 79 (REVERSES and remands interlocutory order denying motion to dismiss complaint for a declaratory judgment, concluding that there is no justiciable controversy)

FAMILY. Appeals Golden v. Worthington, 2020 VT 71 (affirms family division magistrate's order requiring father to paying child support past his eighteenth birthday because Father failed to provide the necessary record for review,)

FAMILY. Delinquency Procedure In re AA, 2020 VT 48 (Affirms delinquency adjudication, holding the statutory timeline for adjudicating the merits of a delinquency petition concerning a juvenile being held in a secure treatment facility does not apply to one held on separate charges)

CRIMINAL Statute of limitations State v. Caron, 2020 VT 96 (VACATES conviction for sexual assault, holding the statute of limitations had run.)

CRIMINAL Double Jeopardy. State v. Nelson, 2020 VT 94 (DIVIDED COURT affirms, as non-duplicative, convictions of both sexual-assault and aggravated-sexual-assault arising from a single act. Although separate sexual exploitation charge was duplicative, remand for resentencing is not warranted.)

CRIMINAL Sexual Assault State v. Stephens, 2020 VT 87 (affirms conviction for attempted  sexual assault,  concluding that  reasonable jury could find beyond a reasonable doubt that defendant attempted to have contact with the complainant's anus despite her statement that he was trying to enter her vagina., and that  the trial court did not abuse its discretion in excluding defendant's proffered evidence of a prior sexual encounter between him and the complainant involving sex in exchange for drugs.)

CRIMINAL open and gross lewdness and lascivious behavior In re AP,  2020 VT 86 (DIVIDED COURT affirms an adjudication of delinquency based on "open and gross lewdness and lascivious behavior" under 13 V.S.A. § 2601, concluding that § 2601 is not ambiguous and not unconstitutionally vague.)

CRIMINAL. DUI. BREATH TEST LAWS CONSTITUTIONAL State v. Williams, 2020 VT 91 (affirms conviction for driving under the influence, third offense (DUI-3) prosecutions. Trial court correctly denied motion to suppress warrantless evidentiary breath test results because the tests satisfied the consent exception to Article 11's warrant requirement.)

CRIMINAL Flight State v. Welch, 2020 VT 74 (affirms L & L conviction. No plain prejudicial error in instruction that flight could show consciousness of guilt.)

CRIMINAL Sentencing. State v. Hinton, 2020 VT 68 (affirms consecutive sentence for offense later decriminalized).

CRIMINAL Search and Seizure Evidence State v. Ferguson, 2020 VT 39. Affirms animal cruelty convictions because even if the information from the challenged prior search is stricken, the remaining portions of the affidavit are sufficient to support the search warrant that led to the charges;  but remands as to the forfeiture proceedings because court improperly allowed hearsay evidence.)

CRIMINAL State v. Kandzior, 2020 VT 37 (vacates conviction for sexual assault because trial court committed plain error by failing to investigate and establish an evidentiary basis regarding what the jury overhead during numerous bench conferences).

CRIMINAL State v. Redmond, 2020 VT 36 (REVERSES and remands conviction for providing false information to a law enforcement officer, and affirms convictions for reckless endangerment and unlawful mischief.)

CRIMINAL Unconstitutional Search State v. Nagel, 2020 VT 31 (REVERSES denial of motion to suppress, holding that police violated Article 11 of the Vermont Constitution by expanding the scope of a valid traffic stop into a drug investigation without reasonable suspicion of drug-related criminal activity and that defendant's subsequent consent to search his vehicle was invalid.)

CRIMINAL SEARCH & SEIZURE State v. Clinton-Aimable, 2020 VT 30 (DIVIDED COURT REVERSES order denying motion to suppress and vacates drug conviction, for lack of probable cause to search vehicle)

CRIMINAL Probation conditions State v. Galloway, 2020 VT 29 (DIVIDED COURT REVERSES, as plain error, finding of probation violation, because State’s interpretation of the condition, adopted by the court, was inconsistent with its plain language.)

CRIMINAL Probation conditions State v. Burnett, 2020 VT 28 (REVERSES finding of probation violation because State failed to prove that defendant's conduct amounted to a violation of the condition)

CRIMINAL. Probation conditions.  State v. Harwood, 2020 VT 65 (affirms ruling that verbal statements violated "violent or threatening behavior" condition of probation).

CRIMINAL. Probation conditions. State v. Bouchard, 2020 VT 10 (strikes and REVERSES or remands several "sex [-] offender special conditions of probation.")

CRIMINAL elements State v. Davis, 2020 VT 20 (affirms drug conviction, because specific knowledge of the actual weight or dosage of the drugs is not an element of various enhanced drug offenses under Title 18).

CRIMINAL PROCEDURE Right to Counsel State v. Watson, 143 VT 543 (affirms murder conviction, holding that the fact that a person making a confession of a crime had at the time no counsel and had not been advised as to his rights does not make the confession inadmissible)

CRIMINAL PCR  In re Fitzgerald, 2020 VT 14 (Affirms denial of PCR alleging ineffective assistance of counsel and knowing presentation of false evidence)

CRIMINAL PROCEDURE. PCR In re Benoit, 2020 VT 58 (affirms denial of summary judgment sought by State in PCR proceeding, holding that a guilty plea to DUI-3, did not waive PCR challenge to any of the predicate convictions).

CRIMINAL. PCR; Involuntary plea. In re Jones, 2020 VT 9 (REVERSES denial of post-conviction relief because the voluntariness of his plea was compromised by misinformation given to him.)

CRIMINAL. Sex Offender Registration. State v. Gauthier, 2020 VT 66 (affirms conviction of violating the Sex Offender Registration Act. holding the exception that relieves incarcerated sex offenders of the reporting requirements does not apply applied to furloughed individuals living in the community).

CRIMINAL. State v. Billington, 2020 VT 78 (affirms ruling that misrepresenting HIV status did not support charge that defendant committed aggravated sexual assault.)

CRIMINAL State v. Gates, 2020 VT 21 (DIVIDED COURT affirms conviction for first-degree aggravated domestic assault, holding trial court did not deny the right to a fair trial by refusing to grant immunity to a witness or to compel the State to do so.)

CRIMINAL Guilty Pleas State v. Rillo, 2020 VT 82 (REVERSES drug conviction because guilty plea lacked factual basis.)

CRIMINAL. EVIDENCE. State v. Allcock, 2020 VT 60 (DIVIDED COURT affirms the convictions of simple assault and impeding a police officer but REVERSES the conviction of aggravated assault based on State’s failure to authenticate incriminating Facebook messages.)

CRIMINAL. Bail State v. Downing 2020 VT 101 (Reverses denial of bail  and holds that the sixty-day period under Chapter II, § 40 of the Vermont Constitution § 40 begins from the time when defendant was first held without bail, overruling State v. Lontine, 2016 VT 26, ¶ 9, (mem.)( period began when the trial court issued its decision following the weight-of-the-evidence hearing). Also holding that bail can be denied even though defendant cannot be tried within sixty days.)

CRIMINAL. Bail State v. Downing, 2020 VT 97 (mem) (affirms denial of bail)-

CRIMINAL. Bail. State v. Booker, 2020 VT 67 (REVERSES hold-without-bail order and remands for release on conditions.)

CRIMINAL. Bail State v. Lohr, 2020 VT 41 (affirms release on conditions without imposing bail.)

CRIMINAL. Bail. State v. Auclair, 2020 VT 26 (3-judge court affirms discretionary denial of bail.)

CRIMINAL PROCEDURE LESSER INCLUDED OFFENSES State v. Rolls, 2020 VT 18 (affirms conviction for lesser offense of sexual assault, because no prejudicial error in “transitional” or supplemental instructions.)

CRIMINAL.  State v. Sarkisian-Kennedy,2020 VT 6 (DIVIDED COURT REVERSES refusal conviction and affirms DUI-2 conviction.)