Divided Court affirms confirmation of arbitration award against employer without deciding whether “manifest disregard" of the law is an appropriate standard of review. The law did not manifestly require employer to discipline employee for HIPAA violation in this case.

 

Howard Center v. AFSCME Local 1674,  2023 VT 6 

 

REIBER, C.J. . Employer Howard Center appeals from a trial court order that confirmed an arbitration award in favor of grievant Daniel Peyser and AFSCME Local 1674. Employer asks this Court to adopt "manifest disregard" of the law" as a basis for setting aside an arbitration award and to conclude that the arbitrator violated that standard here. We do not decide whether to adopt the manifest-disregard standard because, assuming arguendo it applies, employer fails to show that its requirements are satisfied. We therefore affirm.

Employer issued a written reprimand to grievant for sharing client records with his union representative without redacting confidential information. The arbitrator concluded employer should have instead used informal counseling and directives rather than formal discipline, and that employer thus lacked just cause to reprimand grievant. Employer argues the arbitrator manifestly disregarded HIPAA, which it contends required it  to discipline grievant by imposing an "appropriate sanction[]" and it therefore had just cause to reprimand him.

"Vermont has a long history of upholding arbitration awards whenever possible." Shahi v. Ascend Fin. Servs., Inc. , 2006 VT 29, ¶ 10,  Review is limited to "whether there exist statutory grounds for vacating or modifying the arbitration award" and "whether the parties were afforded due process." Id. See 12 V.S.A. § 5677(a)(1)-(5). We have not yet decided whether to recognize "manifest disregard of the law" as an additional basis for vacating an arbitration award, although other courts have done so. See Masseau v. Luck, 2021 VT 9, ¶ 30  (recognizing that this "remains an open question" under VAA and under Federal Arbitration Act (FAA)

 We review de novo whether the arbitrator manifestly disregarded the law in this case. The HIPAA Privacy Rule mandates that covered entities "must . . . [e]nsure the confidentiality, integrity, and availability of all electronic protected health information" and "[e]nsure compliance with this subpart by its workforce." 45 C.F.R. § 164.306(a)(1), (4). In accordance with § 164.306, a covered entity "must" implement a sanction policy and "[a]pply appropriate sanctions" against employees who fail to comply with patient-confidentiality policies and procedures. Id. § 164.308(a)(1)(ii)(C)

 Neither the HIPAA statute nor regulation define the term "appropriate sanction" and there is no case law interpreting the term. The arbitrator found that grievant did not engage in "intentional misconduct" and, at worst, he "made an error in judgment." Because  the HIPAA Privacy Rule does not clearly require a certain type of sanction for violations, Employer fails to show that this case presents an "exceedingly rare instance[]" of "egregious impropriety," Masseau, 2021 VT 9, ¶ 31  that rises to the level of manifest disregard,

We conclude, as in Masseau, that "even assuming that courts are empowered to vacate an arbitrator's decision based on manifest disregard of the law -- which we do not decide -- the asserted legal error in the arbitrator's decision here does not rise to the level of manifest disregard." 2021 VT 9, ¶ 32.

EATON  J. dissenting. The majority's decision essentially transforms our limited review of arbitration decisions into no review. The arbitrator here recognized that the law required employer to sanction grievant for disclosing confidential patient information but the arbitrator chose to disregard that law and reverse employer's decision. The majority's refusal to adopt the manifest-disregard standard is harmful generally because it erodes confidence in arbitration awards and provides an incentive for arbitrators to avoid explaining the bases for their decisions. It is also detrimental under the circumstances of this case because it punishes employer for carrying out its obligations under federal law and ignores the harm to patients whose information was improperly disclosed. Because employer's decision to sanction grievant was supported and required by law and the arbitrator disregarded the law in overturning it, I would reverse and remand for the trial court to vacate the arbitration order. Therefore, I dissent.

I agree with Employer that the arbitrator manifestly ignored the law in concluding that employer lacked just cause to discipline grievant for violating patient confidentiality. I would adopt the manifest-disregard standard and allow courts to vacate an arbitration award when they find that (1) the arbitrator knew the governing law but refused to follow it or ignored it, and (2) the applicable law was well defined, explicit, and clearly applicable to the case.  Although mere legal error will not suffice to vacate an award, this Court should not turn a blind eye to intentional disregard of the law.

Here the arbitrator purposely ignored applicable law to excuse an unnecessary and unlawful breach of patient confidentiality by grievant who deliberately accessed and shared private health information of his patients solely for his own purposes. While the arbitrator did not find any malicious intent, there is no question grievant acted deliberately. The majority's failure to adopt the manifest-disregard doctrine in this case is essentially a rejection of it.

How cited

SCOVT affirms murder conviction, holding warrantless ping search for cell phone location did not under exigent circumstances violate Article 11 of the Vermont Constitution.

State v. Murphy, 2023 VT 8 


CARROLL, J. Defendant appeals from his conviction for second-degree murder following a jury trial. He argues that the trial court erred by: (1) denying his motion for judgment of acquittal; (2) denying his motion to suppress evidence obtained as a result of a warrantless “ping” of his cell phone; (3) failing to sua sponte give a limiting instruction on evidence of flight; and (4) denying his motion for new trial. We conclude that defendant was not entitled to a judgment of acquittal. We further hold that, while defendant had a legitimate privacy interest in his realtime cell site location information under Article 11 of the Vermont Constitution, the warrantless ping was justified by exigent circumstances, and defendant’s motion to suppress was therefore properly denied. We reject defendant’s remaining arguments as well. We therefore affirm.


Neither the U.S. Supreme Court nor this Court has yet addressed whether individuals have a legitimate privacy interest in their real-time cell site location information (CSLI). We decide this case under Chapter I, Article 11 of the Vermont Constitution, which provides that “the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.”


Cellphone providers do not routinely collect the information that the police sought here. Real time CSLI is not a passive location record but data generated by an affirmative action—a ‘ping’— taken by the cell-service provider at the behest of a law enforcement officer. We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment." We hold that individuals have a reasonable expectation of privacy in their real-time CSLI and that the acquisition of this information by police is a search that requires a warrant unless an exception to the warrant requirement applies.


Exigent circumstances may justify an exception to the warrant requirement if the facts, as they appeared at the time, would lead a reasonable, experienced officer to believe that there was an urgent need to take action. Police requested the ping on the day after the murder after, among other things, searching unsuccessfully for defendant at his known locations and interviewing an eyewitness who identified defendant as having probably shot the victim. Given the violent offense and an ongoing danger posed to the police and the public by a fleeing, armed, suspect accused of murdering a stranger on the street we conclude that the totality of the circumstances in this case shows that exigent circumstances justified the warrantless ping. We therefore affirm the trial court’s denial of defendant’s motion to suppress.

How cited

SCOVT affirms dismissal of constitutional and common law tort claims under the six-year statute of limitations where suit was filed more than six years after defendant's construction of improvements that periodically directed stormwater toward plaintiff’s land, holding that none of the claims are for recovery of land subject to the fifteen-year statute and that the continuing tort doctrine, which Vermont has not adopted, would in any event not apply since no "tortious act" occurred within the general six-year limitations period.

 

Nesti v. Agency of Transportation, 2023 VT 1 

 

CARROLL, J. Landowner Frances Nesti appeals two civil-division orders resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans) on grounds of statute of limitations. We affirm.

 In 2006, VTrans rebuilt Route 7 in South Burlington and Shelburne. The project included constructing a new, enclosed stormwater-drainage-management system that directed stormwater downhill from the road in a westerly direction toward Lake Champlain. Nesti’s property lies west of Route 7 and abuts the lake.  Nesti filed suit on December 31, 2018, pleaded takings, trespass, and private-nuisance claims, seeking damages and injunctive relief arising from stormwater runoff that began forming in a ravine sometime after the completion of the project.

 

The court found on motion under Rule 12(b)(6 ) that Nesti was on notice that her claims accrued before December 31, 2012 (a conclusion Nesti does not challenge on appeal, except to claim continuing accrual). This  was the cutoff date for her December 31, 2018, complaint under 12 V.S.A. § 501, if it applies.

 

The court permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question of whether they were continuing torts.  However, on summary judgment, the court determined that the lack of any tortious conduct within the limitations period would take the case out of the doctrine’s operation. The court entered judgment for VTrans on all claims. 

 

On appeal Nesti makes essentially four arguments: (1) her takings (inverse condemnation) claim  is not time-barred because it is subject to the fifteen-year limitations period for bringing claims to recover lands under 12 V.S.A. § 501; (2) to the extent the takings claim is time-barred under 12 V.S.A. § 511, it violates the federal and Vermont Constitutions; (3) her trespass and nuisance claims are also subject to 12 V.S.A. § 501; and (4) if § 501 does not apply to the tort claims, they are not time-barred under the continuing-tort doctrine

 

(1)

An inverse condemnation claim is not an action for the recovery of land

Nesti argues that her takings claim is subject to the fifteen-year statute of limitations for bringing actions to recover lands under 12 V.S.A. § 501,  not the general six-year statute of limitations for civil actions under 12 V.S.A. § 511.

12  V.S.A § 501 provides

[A]n action for the recovery of lands, or the possession thereof, shall not be maintained, unless commenced within 15 years after the cause of action first accrues to the plaintiff or those under whom he or she claims.

Nesti argues, in effect, that because VTrans could obtain a prescriptive easement or adversely possess her property only  after the fifteen-year limitations period, her takings claim cannot be cut off at six years under § 511 because that would be tantamount to granting the State a property interest without just compensation nine years before it could make out a prima facie claim of adverse possession  for such an interest.  We disagree. 

Adverse possession and takings claims are distinct causes of action and subject to different limitations periods because each is a product of contrasting public policy choices.  The fifteen-year state, 12 V.S.A. § 501, does not apply to inverse condemnation claims under Vt. Const. ch. I, art. See Dep’t of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, ¶ 6.

(2)

 Constitutional arguments raised below but not addressed by the trial court will not be considered on appeal.

Nesti next argues that barring her takings claim under § 511 violates the federal and Vermont Constitutions. However the civil division did not actually address this argument in either its summary-judgment order or on the State’s motion to dismiss.  Nesti did  not assign error to the civil division’s failure to address her constitutional arguments This  results in waiver in this Court. See State v. Nash, 2019 VT 73, ¶ 18, 211 Vt. 160, 221 A.3d 386 (holding that issues not challenged for plain error on appeal are waived without review); see also V.R.A.P. 28(a)(3) (requiring appellants to provide, among other things, “specific claims of error”). Accordingly, we do not address the merits of this argument.

(3)

 Trespass and nuisance claims are not actions for the recovery of lands.

Nesti next argues that her tort claims are  “an action for the recovery of lands, or the possession thereof” under  12 V.S.A. § 501, not governed by  12 V.S.A. § 511.

 

a) Trespass

 Liability for trespass arises when one intentionally enters or causes a thing to enter the land of another. Thus, one who causes water to enter the land of another is liable for trespass.

 

 We have held that trespass claims are subject to the six-year statute of limitations provided by 12 V.S.A. § 511. Jadallah v. Town of Fairfax, 2018 VT 34, ¶ 16, 207 Vt. 413, 186 A.3d 1111 (holding that appellant’s claims, including trespass, “are all civil” rendering them subject to “the six-year period under § 511”); Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 51-52, 87 A. 349, 351-52 (1913) (same).

 

Nesti is correct that she has fifteen years to bring an action to recover lands under § 501, but she is incorrect that she has fifteen years—or more—to bring a trespass action from the date on which the trespass cause of action accrues. The aggrieved party has the full six-year period to file a trespass claim, and the full fifteen years to recover lands under § 501. It is simply not true that affirming the civil division will mean “trimming” nine years off the fifteen years permitted by statute to recover lands.; instead, she failed to file her trespass  complaint within the six years the Legislature provided for such actions.

 

b) nuisance

Private nuisance is “a substantial and unreasonable interference with a person’s interest in the use and enjoyment of land.” A claimant has six years to bring a nuisance cause of action following the causes of action’s accrual. Alpstetten, 137 Vt. at 512-13, 408 A.2d at 646 14 (“The appellant alleged a tortious act resulting in an interference with the use and enjoyment of his property. Accordingly, the six[-]year statute of limitations is applicable.”)

 

(4) No continuing tort

Nesti’s final argument is that her trespass and nuisance claims are timely under the continuing-tort doctrine, and she asks this Court to apply the doctrine for the first time.  Nesti argues that she suffers a continuing harm with “each rush of water creating a fresh harm for which a new [cause of action] should accrue.”

 

The continuing tort doctrine requires “at least two elements: a continuing wrong, and some action contributing to the wrong that occurred within the limitations period.” Gettis v. Green Mountain Economic Development Corp., 2005 VT 117¶ 25. The contributing action cannot be “simply the continuing ill effects of prior tortious acts,” Id. ¶ 28.

 

VTrans has made no material change to the system since 2006.  Nesti has not alleged that VTrans committed a tortious act after the 2006 reconstruction. Without at least one such act occurring within the six-year limitations period, we are unpersuaded by Nesti’s argument because, even if we adopted the doctrine, it would not apply in this case. Accordingly, Nesti’s tort claims are time-barred.

 

Affirmed.

How cited

---

SCOVT NOTE:  This case is puzzling because it seems to determine the applicable statute by reference to the legal theory (nuisance, trespass, inverse condemnation) rather that the nature of the harm or relief requested.  That is, an action for trespass or ejectment that seeks return of possession could be potentially be treated differently under the 15-year statute than one that sought only damages. (In this case the  trial court dismissed Nesti's ejectment causes of action for failing to state a claim, and Nesti did not appeal that determination.) The holding that an inverse condemnation claim is not governed by the 15-year statute can only be explained by defining an inverse condemnation claim as one seeking only damages for an unconstitutional taking.

Neither Jadallah nor Wheeler, cited by the Court, held that § 511 applies to “trespass claims.” Section 511 is the general civil statute of limitations that applies “unless as otherwise provided." -- when no other statute is applicable. Jadallah merely held that § 511 governed in that case because “appellant has not presented any reason to this Court that any statute of limitations other than the six-year period under § 511 is applicable.” 2018 VT 34, ¶ 16.

The Wheeler Court expressly did not decide if the six-year statute applied. It reversed a dismissal on the pleadings based on the six- year statute because the allegations supported a continuous accrual theory, invoked equity jurisdiction based on a  continuous trespass; and in event the six -year statute did not bar claims for injury within the most recent six-year period. The Court remanded the case in language that seems to support, rather than reject, a "continuing tort" theory that looks at when the harm, not the tortious act, occurred:

As to the statute of limitations, the demurrer is too large, for it goes to the whole bill, whereas, if good at all, which we do not decide, it is good only for what lies back of the statutory period, for the case is one of continuous injury without fresh violence, and of constantly accruing damages, the statute can cut off only back of six years from suit brought.

Wheeler v. Town of St. Johnsbury, 87 Vt. 46, (1913) (emphasis added) (citing precedent elsewhere establishes that a wrongful continuous flowing of land by means of a dam is a continuing injury, and affords a constantly accruing cause of action) 

Plaintiff Nesti's reply brief alerted the Court to no avail that Wheeler did not hold the six-year statue applies to trespass claims but instead supported the continuing trespass theory: 

VTrans' also relies on Wheeler v. Town of St. Johnsbury 87 Vt. 46, 51-52 (1913) as support for the imposition of a six-year statute of limitations to trespass claims. Wheeler does not support VTrans. Rather Wheeler stands for the opposite position and supports Appellant. In Wheeler this Court explained that where there was a continuous trespass (say the continued diversion of water) that gives rise to constantly accruing causes of action, dismissal under a six-year statute isn't warranted (though damages may be limited). Id. at 349. Thus the Wheeler Court reversed a denial of claims on the basis of a six-year statute of limitations claim when there was a constant trespass. 

A puzzling case indeed.  A case well-briefed, but the briefs were unread.

 

SCOVT reverses, as an abuse of discretion, order vacating dismissal of complaint due to pending bankruptcy proceeding, holding the court had no legal basis to vacate the dismissal order under Rule 60 or otherwise, two years after it issued.

Hill v. Springfield Hospital and Emergency Services of New England, Inc., 2023 VT 23

CARROLL, J. In this interlocutory appeal, defendants challenge the civil division’s order granting plaintiff’s request to vacate its previous order dismissing her malpractice complaint. We agree that there was no legal basis for the court to grant such relief, and therefore reverse.

 After notification of bankruptcy proceedings, the court entered a “dismissal order” without prejudice to the Plaintiff’s right to have the order vacated, and the case reopened, if Plaintiff made application within thirty (30) days of the date of Bankruptcy Court removed the automatic stay.

Plaintiff moved to vacate, but more than thirty days after the bankruptcy case was closed.

The court granted plaintiff’s motion, stating that it was “persuaded that there was no legal or equitable basis to dismiss the action simply because one of the two defendants filed a bankruptcy petition.” The court stated that it had intended to simply stay the action and that dismissal would be unjust.

 The court denied defendants’ request for reconsideration, reasoning that “[w]hether pursuant to the court’s inherent authority to vacate unlawful orders, or pursuant to V.R.C.P. 60(b)(4) or (6), the court is duty bound to vacate the unlawful dismissal order because failure to do so would work a substantial injustice by unlawfully denying plaintiff’s right to seek redress for her alleged injuries."

This Court accepted the interlocutory appeal on the question whether the civil division had a legal basis to vacate the 2019 dismissal order V.R.A.P. 5(b)(6)(B).  We conclude that it did not, and reverse.

 

First, plaintiff failed to comply with the terms of the dismissal order. By law, the bankruptcy court’s decision closing the bankruptcy case operated to remove the automatic stay. Under the plain terms of the dismissal order, plaintiff had thirty days from that date to move to reopen the case. She did not do so.

 

The trial court had no inherent authority independent of Rule 60 to modify or vacate a final judgment. Once the twenty-eight-day time period set forth in Rule 59 elapsed, relief is only available if one of the conditions in Rule 60 is satisfied. Kotz v. Kotz, 134 Vt. 36, 38, 349 A.2d 882, 884 (1975); see also Reporter’s Notes, V.R.C.P. 60 (“The rule is intended to provide the sole means of obtaining relief from a judgment after the time for a motion under Rule 59 has run.”). Having failed to follow that procedure, plaintiff’s sole avenue of relief was Vermont Rule of Civil Procedure 60.

 

In this case, plaintiff’s motion was filed more than a year after the judgment, so she is not entitled to relief under subdivisions (b)(1), (2), or (3).  Thus, even assuming the 2019 dismissal order qualified as a “mistake” within the meaning of Rule 60(b)(1), that provision is of no aid to her.

 

Plaintiff does not claim that she is entitled to relief under subdivision (b)(5), nor does that provision appear to fit the circumstances in this case. We accordingly assess whether the trial court could properly grant relief under Rule 60(b)(4) or (b)(6).

 

Plaintiff argued below that relief was available under Rule 60(b)(4) because the 2019 dismissal order was contrary to law and therefore void when it was entered.  Whether it was unlawful for the civil division to dismiss her entire case in response to Springfield’s notice of bankruptcy is not the issue before us.  The question certified for review is whether the court had a valid reason to vacate the dismissal. We conclude that the civil division had jurisdiction to enter the dismissal order, meaning that it was not “void” within the meaning of Vermont Rule of Civil Procedure 60(b)(4), and that plaintiff demonstrated no other valid basis to challenge the order two years after it was issued.

A judgment is void within the meaning of Rule 60(b)(4) “only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” In re C.L.S., 2020 VT 1 ¶ 17.  The civil division had jurisdiction, concurrent with the bankruptcy court, to determine the applicability of the automatic stay to plaintiff’s case. Klass v. Klass, 831 A.2d 1067, 1071 (Md. 2003).  Plaintiff had notice and multiple opportunities to object to or remedy the dismissal order, and we see no basis to conclude that the order was inconsistent with due process such that it was void for purposes of Rule 60(b)(4).  The argument that the order violated the automatic stay is not grounds for relief under Rule 60(b)(4).

Rule 60(b)(6) allows the trial court to relieve a party from a final judgment for any reason beside those set forth in the first five sections of the rule, as long as the request for relief is made within a reasonable time.  The record is clear that plaintiff’s own lack of diligence, not the dismissal order or defendants’ conduct, is the reason for her situation. It was therefore an abuse of discretion for the court to grant plaintiff’s motion to reopen the case under that subdivision of the rule.

 

The civil division did not have inherent authority or any basis under Rule 60(b) to vacate the dismissal order.

 

 Reversed.

How cited

SCOVT NOTE: The Court expressly did not validate the dismissal order in question as a lawful response to the automatic stay. 

In another context, the Court characterized this type of dismissal without prejudice to a time-limited motion to reopen as “procedurally unorthodox,” stating “litigants and courts would be well advised not to follow its model."  Re Purvis Nonconforming Use, 2019 Vt 60 ¶ 14.

 

SCOVT affirms partition order that did not physically divide property, rejects objection that infeasibility of zoning permit was not a lawful consideration.

  Wells  v. Spera, 2023 VT 18   

           

CARROLL, J. Plaintiffs appeal a civil-division order assigning real property to defendant in this partition action. We affirm.

Plaintiffs argue that the failure to divide the property offends the long-standing preference to order partition in kind over assignment or sale, and that the decision not to divide because of potential zoning violations exceeded the scope of the commissioners’ authority set out in the reference order.

 

Partition actions are governed by statute, 12 V.S.A. §§ 5161-5188, and Civil Rule 53. Under this framework, once the trial court determines partition is appropriate, it appoints three commissioners who reside in the same county as the subject property and who “shall make partition of the estate,” 12 V.S.A. § 5169(a), unless it “cannot be divided without great inconvenience to the parties.” Id. § 5174. If the property cannot be divided without great inconvenience, the “court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.” Id. § 5174. Only if no party will take an assignment may courts order the sale of a property. Id. § 5175. Following receipt of the commissioners’ report, the trial court must accept it “[u]nless cause is shown.” Id. § 5172.

 The court issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report.

 The commissioners credited defendant’s testimony that division would result in an overall value of $1,300,000, which was $200,000 less than the $1,500,000 combined value and concluded that “given the serious zoning hurdles,” the property could not “be physically divided without great inconvenience to the parties because doing so has the very real potential to materially decrease or perhaps even extinguish the property’s value.” They awarded defendant first option to buy out plaintiffs’ interest. 

 Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii), arguing the commissioners erred as a matter of law.  in concluding that partition would result in zoning violations. In the alternative, they argued that the equities favored assigning the property to them.

The court denied the motion and adopted the report without qualification. It reasoned those plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). The court found that the commissioners had acted within the scope of their mandate as described in the reference order and that the record supported their findings and conclusions.

 In contrast to plaintiffs’ characterization, the issue is not whether the commissioners concluded partition in kind was inequitable purely because division would create zoning violations; instead, the question here is whether the commissioners can consider potential zoning violations to determine whether physical division would materially decrease the property’s value. See Billings v. Billings, 114 Vt. 70, 74, 39 A.2d 748, 750 (1944) (explaining that great-inconvenience-to-parties test is whether “the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person”). 

The commissioners’ findings regarding potential zoning violations, among other findings, supported their conclusion that division would materially decrease the property’s value. The record supports their findings, and the findings support their conclusion not to divide the property. It follows that the trial court did not err in accepting this portion of the report. See Messier, 140 Vt. at 314, 438 A.2d at 400

 Plaintiffs’ next argue that the commissioners erred by giving defendant first right of assignment, improperly considering the parties’ ability to buy out the other in making this determination.  As in Nystrom v. Hafford, the findings about the parties’ relative abilities to timely buy out each other’s interests are appropriate equitable considerations. 2012 VT 60, ¶ 17

 Because. the challenged findings are not clearly erroneous, we need not and do not address whether Rule 53(e)(2) permits a party to object to a report following the report’s delivery to the trial court where the party did not reserve a right to object in the first instance.

Finally, plaintiffs request a remand to redetermine the property’s value because of purported changes in the real-estate market. Plaintiffs fail to cite where this argument was preserved and cite no case or other legal authority in support. Accordingly, we will not review it. V.R.A.P. 28(a)(4)(A) (requiring litigant to demonstrate how issues were preserved and to support argument with citations to authorities and parts of record relied upon); see Kneebinding, Inc. v. Howell, 2020 VT 99, ¶ 61, 213 Vt. 598, 251 A.3d 13 (Mere naked statements, unsupported by argument or citation of authorities, constitute inadequate briefing and merit no consideration.)

 Affirmed.

How cited

SCOVT reverses summary judgment, rejects Restatement (Third) of Property, and holds deeded right of way for “ingress and egress” does not allow access to install underground utilities.

Gladchun v. Eramo, 2023 VT 5


CARROLL, J. Jeffrey and Alyssa Gladchun appeal a decision granting summary judgment to neighboring landowners, Michael and Diane Eramo, and the Eramos' lessee, New Cingular Wireless, PCS, d/b/a AT&T (AT&T). The civil division concluded that a deed granting a right-of-way for "ingress and egress" to the Eramos was unambiguous and did not limit AT&T from installing utility lines under the right-of-way to service a planned communications tower. We agree that the deed is unambiguous as to the right-of-way. However, we disagree that it expresses more than the plain, ordinary meaning of "ingress and egress," which does not include installing underground utilities. Accordingly, we reverse and remand.

In March 2021, the Eramos granted AT&T an option to lease a portion of Lot 10 to construct a 195-foot-high communications tower. Lot 10 is benefitted by a thirty-foot right-of-way that is the only access to Lot 10. The right-of-way is described in the deed as “for the purpose of ingress and egress to and from the conveyed premises.”

On summary judgment the only question was whether the deed's express terms permitted underground utility lines. The trial court cited VTRE Investments, LLC v. MontChilly, Inc. for the proposition that "[w]here the intent is clearly to create a right of ingress and egress, but the language of the deed is general, 'the dominant estate "is entitled to a convenient, reasonable, and accessible way.'" 2020 VT 77, ¶ 23 (quoting Patch v. Baird, 140 Vt. 60, 66 (1981). 

Using this framework, the court relied on a comment to § 4.10 of the Restatement (Third) of Property to determine installation of underground utilities was a reasonable use of the right-of-way because normal advances in technology can permissibly increase "the manner, frequency, and intensity" of uses over time, citing previous cases of this Court for that proposition.

On appeal, the Gladchuns' primary argument is that the deed term unambiguously limits the use to the plain meaning of "ingress and egress," which does not include installing underground utilities. We agree conclude that the term is unambiguous, and the plain meaning of "ingress and egress" does not permit AT&T's current proposal.

The plain meaning of the words ingress and egress convey a right for defendants to enter and leave Lot 10 using the right-of-way. Nothing we can discern in the definitions of either word individually, or in combination, denote a right to install underground utilities. Where a deed unambiguously limits and defines a right-of-way, as here, our inquiry ends, and we enforce the deed as written. Accordingly, we need not consider what constitutes a "convenient, reasonable, and accessible way", nor do we need to consider what uses may constitute an overburden of the easement.

Defendants counter that this Court should adopt comment d to § 4.10 of the Restatement (Third) of Property (2000), which states that:

O, the owner of Blackacre, granted an easement to Able, the owner of Whiteacre, for `ingress and egress' from Whiteacre to the public street abutting Blackacre. The deed did not specify whether utility lines could be placed in the easement. Unless the facts or circumstances suggest that the parties intended otherwise, it would be proper to define the purpose of the easement generally to include access for anything that could conveniently be transported through the easement corridor and that would normally be used in connection with property situated like Whiteacre, including utility services.

We do not follow the Restatements if there "is a strong rationale to the contrary." Langlois v. Town of Proctor.  2014 Vt 130, ¶ 34,There are strong policy rationales to the contrary here.

First, the comment runs contrary to our long-standing rule for interpreting deeds in Vermont, which is to enforce the intent of the original parties, using whenever possible the plain, ordinary, and popular meaning of the language contained in the document.

Second, the Vermont Constitution vigorously protects private-property ownership, and the present character of the state is indicative of this feature. See, e.g., Vt. Const. ch. I, art. 1 ("That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety . . . .");[1] Since its founding, the people of the state have expressed a robust commitment to private-property ownership. See generally State v. Kirchoff, 156 Vt. 1, 14-19 (1991) (Springer, Dist. J. (Ret.), Specially Assigned,concurring) (explaining centrality of property rights in early Vermont and noting that "[p]rotection of citizens' rights to security in their land was a key motivating force in creating the Vermont Constitution"). This Court's long-standing rules of deed interpretation reflect this commitment.

In short, the comment has little relevance to Vermont given Vermont's unique character and history. While a policy may exist in other jurisdictions favoring the implication of a right to install utility lines where an otherwise unambiguous express easement is silent on the issue, it does not fit well in Vermont.

Because the civil division did not rule on defendants' alternative argument that Lot 10 is benefitted by an easement by necessity, we remand to the civil division to resolve that question.

Reversed.

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 SCOVT note: Many states have constitutional provisions very similar to Article 1. Compare Vt. Const. ch. I, art. 1 with Cal. Const. art. 1, § 1 ("All people are by nature free and independent and have certain inalienable rights. Among these are enjoying and defending life and liberty . . . and pursuing and obtaining safety, happiness and privacy."); Mass. Const. pt. 1, art. 1 ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties . . . [and] that of seeking and obtaining their safety and happiness."); Nev. Const. art. 1, § 1 ("All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty . . . and obtaining safety and happiness[.]"); Va. Const. art. 1, § 1 ("That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, . . . and pursuing and obtaining happiness and safety.").

The Court has said that although "the text [of Article 1] includes the right to possess and protect property,” that right is listed among other "natural, inherent, and unalienable rights" merely to flesh out “philosophical truisms.” Shields v. Gerhart, 163 Vt. 219, 234-35 (1995) (holding Article 1 is not self-executing.)

The law of easements by necessity is summarized in a case recognizing an implied easement by necessity for water and sewer lines where development the residential property was is impossible without access to utilities:

It is well settled in Vermont and elsewhere, however, that an implied easement by necessity may arise by operation of law where it is essential to the "reasonable enjoyment of [the] land," Berge v. State, 2006 VT 116, ¶ 12, 181 Vt. 1, 915 A.2d 189, and that this principle incorporates access to essential utilities. See McElroy v. McLeay, 71 Vt. 396, 398-99, 45 A. 898, 899 (1899) (recognizing implied easement for access to public sewer line as "within the rule that everything . . . that is essential to the beneficial use and enjoyment of the property designated in the grant is . . . to be considered as passing by the grant"); see also Brown v. Miller, 140 Idaho 439, 95 P.3d 57, 61 (2004) (holding that easement by necessity "reasonably includes utilities"); Smith v. Heissinger, 319 Ill.App.3d 150, 253 Ill.Dec. 543, 745 N.E.2d 666, 671-72 (2001) (rejecting assertion that easement by necessity is limited to ingress and egress, and holding that it may exist for access to power, telephone, water, and sewer lines); Morrell v. Rice, 622 A.2d 1156, 1160 (Me.1993) ("An easement created by necessity can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities, essential for most uses to which property may reasonably be put in these times."); Huggins v. Wright, 774 So.2d 408, 412 (Miss.2000) (affirming grant of "easement of necessity . . . for ingress/egress and for utilities"); see generally 1 Restatement (Third) of Prop.: Servitudes § 2.15 cmt. d (2000) (observing that "increasing dependence" on access to utilities for reasonable enjoyment of property supports recognition of easement by necessity).

Regan v. Pomerleau. 2014 VT 99 ¶ 34.

.

Divided Court affirms, as discretionary, a “pet allocation” that factored the husband’s denial of visitation during separation. in disregard of “Zola’s emotional attachment to wife”

 LaRiviere v. Shea, 2023 VT 33 

CARROLL, J.  Husband appeals a final order granting wife ownership of the family dog in this divorce action. We affirm.

Section 751 of Title 15 gives the family division authority to order an equitable division of marital property after considering all relevant factors.15 V.S.A. § 751(b) ("In making a property settlement the court may consider all relevant factors, including [statutory criteria]."); Hament .v. Baker, 2014 VT 39 , ¶ 7.

On appeal Husband argues  that the trial court  misapplied the pet-allocation factors set out in Hament and authorized by § 751(b).

Because  few of the statutory factors apply to pets, Hament held that  § 751(b) “permits the consideration of additional relevant factors.” Id. ¶ 12. We outlined two factors not in the statute that were appropriate for courts to consider in this context: “[1] the welfare of the animal and [2] the emotional connection between the animal and each spouse.” Id. ¶¶ 12- 13  The family division enjoys wide discretion when dividing property and must only “provide a clear statement as to what was decided and why” Id.

The court found the parties adopted a dog together before their marriage, which they named Zola. Zola appeared to be emotionally attached to both parties. Each regularly spent time with Zola and maintained a strong emotional bond to Zola They shared equally in the expenses and care for Zola until the spring of 2021. When the parties first separated, each agreed to have Zola every other week on an alternating basis. After moving out of state, however,  husband  unilaterally and without explanation cut off wife from contact with Zola.

The trial court correctly identified 15 V.S.A. § 751 and Hament as the appropriate authority and provided a clear explanation about what it decided and why. Applying the two Hament factors, the court found that husband and wife were each able to meet Zola’s needs, including providing play time and medical care. The court found that each party had strong emotional bonds with Zola, although wife’s bond seemed to be greater. The court was troubled by at husband’s unilateral and unexplained decision to cut off contact between wife and Zola, stating it “call[ed] into question his regard for the emotional attachment that Zola feels toward [wife].” On balance, it concluded that the two factors favored assigning Zola to wife. 

This satisfies  Hament, which merely requires a clear statement about what it decided and why. Id. ¶ 7,  ¶ 20. 

The dissent mischaracterizes a single finding—husband’s disregard for wife’s emotional connection to Zola—as engaging in a custodial best-interests analysis, which would be unlawful in this context See Hament, 2014 VT 39, ¶ 10 (“In contrast to a child, a pet is not subject to a custody award following a determination of its best interests.”). Neither party raised the question the dissent focuses on, and the trial court did not consider it. Husband’s disregard for wife’s emotional connection to Zola is inherently a finding relating to Hament’s factor regarding “the emotional connection between the animal and each spouse.” Id. ¶ 13

Even if we were to find that disregard for Zola’s feeling toward wife does not neatly fit into either Hament factor -- though it plainly relates to both -- we would affirm the court’s decision. Nothing in Hament  limits the family division’s discretion to certain factors  As discussed, § 751(b) and Hament both permit the court to fashion an appropriate order based on “all relevant factors.” The trial court has considerable discretion in this posture and, absent entirely withholding its discretion or exercising it for clearly untenable or unreasonable reasons, we will affirm.

For these reasons, the court did not err in awarding Zola to wife.

 Affirmed.

 COHEN, J., dissenting. I would reverse and remand on the grounds that the trial court’s decision exceeded the scope of the factors identified in Hament, ¶ 13 for determining pet ownership in divorce proceedings. The court applied a best-interests standard appropriate when determining child custody but inappropriate for pet allocation.

It is inappropriate and an abuse of discretion to allow best-interests factors to seep into a property-division analysis beyond the two pet allocation factors this Court has already indicated are appropriate. See Hament, ¶ 13. Whether or not husband has regard for the emotional connection between Zola and wife is irrelevant to the pet-allocation analysis.

This Court already held in Hament that a property-division proceeding cannot end in shared ownership of a pet; it would be logically inconsistent to then rely on compliance (or lack thereof) with a shared-ownership agreement as evidence weighing in one party’s favor in such a proceeding. Id. ¶ 6.

Further, regard for the emotional connection between the pet and the other party is categorically unnecessary when considering pet ownership.

The trial court impermissibly considered factors beyond the scope of Hament. I would therefore remand for the court to reconsider the evidence under the correct legal standard.  I am authorized to state that Justice Waples joins this dissent.

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SCOVT NOTE.  Hament held the welfare of the animal may be considered in final disposition, also noting, "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."  

In addition to confirming that the statute expressly permits consideration of relevant factors other than those enumerated in § 751(b), Hament  held the Family Division has no authority to impose an enforceable joint custody or visitation order for a dog. An order of "pet allocation" is a final property division order not subject to modification. Even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division:

Divorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time.

Hament ¶ 19. (Crawford, J.)

Unanimus Court affirms denial of stalking complaint because defendant’s conduct did not fall within the statutory definition of stalking, as recently interpreted by a divided Court.

Morton v. Young, 2023 VT 29 

WAPLES, J. Plaintiff Ava Morton appeals the denial of her complaint for an order against stalking. We conclude that defendant’s conduct did not fall within our recent interpretation of the statutory definition of stalking, which encompasses “only threats of physical harm,” and therefore affirm the decision below.

In Hinkson v. Stevens, a majority of this Court concluded that the term “threatens, or makes threats about” in § 5131(1) encompasses “only threats of physical harm.” 2020 VT 69, ¶ 42. 

 As Hinkson plainly controls this case plaintiff urges us to reconsider Hinkson . She argues that a threat to disseminate nude photos, while not a “true threat” of physical harm, is also not a constitutionally protected activity and therefore can be restrained by the civil stalking statute. She contends that Hickson was wrongly decided and unsupported by the previous Vermont caselaw referred to in the decision.

We considered and rejected most of plaintiff’s arguments in Hinkson. See 2020 VT 69, ¶¶ 32-34, ¶¶ 44-46; id. ¶¶ 54-62, 71 (Reiber, C.J., dissenting)

“While not slavish adherents to stare decisis, we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.” State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) (citation omitted). Plaintiff has offered no persuasive reason for us to overrule a case decided just three years ago. There is no evidence that this Court has moved away from our holding in Hinkson  since it was issued or that Hinkson was inconsistent with a trend in other jurisdictions. Cf. Coop. Fire Ins. Ass’n of Vt. v. White Caps, Inc., 166 Vt. 355, 356, 694 A.2d 34, 34 (1997) (reconsidering previous caselaw based in part on evolving trends in jurisprudence of other jurisdictions). Nor has the Legislature amended the statute since we decided Hinkson . See Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 490-91, 726 A.2d 20, 29 (1998) (noting that “we do not lightly overrule settled law especially where it involves construction of a statute which the legislature could change at any time.” (quotation omitted)). These considerations weigh against overturning Hinkson , “even assuming that current members of the Court would have reached a different decision.” O’Connor v. City of Rutland, 172 Vt. 570, 571, 772 A.2d 551, 553 (2001).

Affirmed.

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SCOVT NOTE. State Decisis.  This case is in a  line of authority reciting the  proposition that “mere disagreement” is not grounds to overrule "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. Berini,, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem)

On the other hand, the Court, will overrule a precedent interpreting a statute if the interpretation is is "simply wrong." In re SD, 2022 VT 44.

And the age of the precedent should  not matter. The Court has upheld 200 year-old  precedent, despite its age.  Ferry v. City of Montpelier, 2023 VT 4.  And it has overruled cases as little as one ,two or three years-old, despite their recent vintage.  See State v. Haynes, 2019 VT 44 (overruling State v. Lyford, 2016 VT 118 as inconsistent with a specific Court rule); Whippie v. O'Connor, 2011 VT 97 (mem.) (overruling Massey v. Hrostek, 2009 VT 70, as overlooking settled prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking a specific Court rule.)

A perhaps more important factor in Morton v. Young is that the precedent in question was decided over a dissenting voice. A dissent usually means the Court has already fully considered the arguments, has not overlooked anything, and is not "simply wrong." This is not a Court likely to reconsider just because the composition of the Court has changed. 

As Chief Justice Reiber did here, dissenting judges ordinarily join in the majority the next time around. For another example, see Justice Johnson’s opinion dissenting from the reversal of a punitive damage award in Brueckner v. Norwich University, 169 VT 118 (1999) and her opinion relying on  the  Brueckner  majority in support of the reversal of a punitive damage award. in Monahan v. GMAC Mortg. Corp,  2005 VT 110 ¶57.

SCOVT affirms, under Rule 12(b)(6), order dismissing complaint on motion made under 12(b)(3) based on violation of forum selection clause where plaintiff did not raise any issue as to the reasonableness of the forum selection clause or convenience of the agreed forum; holding that defendant’s alleged anticipatory repudiation of its contractual obligations did not discharge plaintiff’s obligation to comply with forum-selection clause..

Margolis v. Daily Direct LLC, 2023 VT 20


EATON, J. In this contract dispute, plaintiff Gary Margolis appeals the trial court’s grant of defendant Daily Direct LLC’s motion to dismiss plaintiff’s complaint. We affirm.

The complaint alleged breach of contract, violation of the Vermont Consumer Protection Act, and unjust enrichment. Defendant moved to dismiss pursuant to Vermont Rule of Civil Procedure 12(b)(3), arguing that the forum-selection clauses in the contracts were valid and required the complaint should be dismissed for plaintiff to refile in an appropriate court in Milwaukee. The trial court granted defendant’s motion.

On appeal, plaintiff argues that dismissal was improper because defendant’s anticipatory repudiation of its contractual obligations discharged plaintiff of performing any obligation to comply with the forum-selection clauses. Defendant argues that a forum-selection clause survives anticipatory repudiation of a contract unless the repudiation is directed at the forum-selection clause itself.

Venue and forum selection are separate legal questions. The proper mechanism to challenge the legal effect of a forum-selection clause is through a Rule 12(b)(6) motion to dismiss for failure to state a claim, not a challenge to venue under Rule 12(b)(3), and we will review under that standard. The complaint did not include copies of the contracts or mention the forum-selection clauses; however, we may properly consider the contracts themselves, even though they were outside plaintiff’s complaint, because “when the complaint relies upon a document . . . such a document merges into the pleadings and the court may properly consider it under a Rule 12(b)(6) motion to dismiss.” Kaplan v. Morgan Stanley & Co, 2009 VT 78, ¶ 10 n.4, 186 Vt. 605, 987 A.2d 258 (mem.).

Plaintiff’s argument is narrow and accordingly so is the scope of the issue presented to this Court. We are not presented with the issue of whether the forum-selection clause is unreasonable and should not be enforced. Nor are we presented with the doctrine of forum non conveniens as a basis for dismissal. This case is about the construction of a clause in a contract. Accordingly, we do not address the procedure or legal standards for forum non conveniens and unreasonableness challenges. We are exclusively presented with the narrow question of whether anticipatory repudiation of a contract discharges the nonbreaching party’s duty to comply with the contract’s forum-selection clause.

Based on the purpose of forum-selection clauses, our respect for freedom of contract, and the persuasive precedent available on this topic, we conclude that a forum-selection clause survives repudiation of a contract unless the repudiation is directed at the forum-selection clause itself, which is not the case here. For these reasons, we conclude that dismissal was appropriate for failure to state a claim under Vermont Rule of Civil Procedure 12(b)(6) and affirm on that basis.

Affirmed.

COHEN, J., concurring. I agree with the majority on the preservation issue, but I am troubled by the trial court’s one-line order dismissing the case without any review of the fundamental fairness of the forum-selection clause. Vermont law is clear: although they are prima facie enforceable, forum-selection clauses are not absolute. Enforcement of a forum selection clause is not automatic, and courts may disregard such clauses. Under this precedent, I view Vermont courts as needing to engage in some level of assessment of fundamental and procedural fairness when requiring Vermonters to litigate claims in a location at a significant expense and inconvenience to them. Although the majority is correct that the parties did not raise the question of the fairness of enforcement, it should be noted that courts in Vermont must apply appropriate equitable principles when mandated.

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