SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

SCOVT affirms denial of motion to intervene, because -- on de novo review-- the motion was untimely.

State v. Quiros, 2019 VT 68 [Filed October 4, 2019]

CARROLL, J. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appeal an order denying their motion to intervene in the State's enforcement action brought against defendants. We conclude that, under a de novo standard of review, the intervention was untimely, and because untimeliness is a threshold issue under both Rule 24(a) and (b), we affirm.

Intervenors moved under Vermont Rule of Civil Procedure 24(a) and (b) to intervene in this action. Intervenors sought the "full recovery of any judgment obtained in this action" and the "[d]isgorgement and restitution of all earnings, profits, compensation and benefits." They also sought punitive damages The superior court denied the motion to intervene without reference to its timeliness.

A trial court must grant a motion to intervene as of right if it is (1) timely; (2) the intervenor has "an interest relating to the property or transaction" that is the subject of the underlying action; (3) the intervenor would be impaired or impeded in his or her ability to protect that interest depending on the outcome of the action; and (4) the intervenor's interest is not adequately represented by the existing parties. V.R.C.P. 24(a). Permissive intervention is available if the motion is (1) timely and (2) the prospective intervenor's "claim or defense and the main action have a question of law or fact in common." V.R.C.P. 24(b). Vermont Rule 24 is "substantially identical to Federal Rule [of Civil Procedure] 24" with "minor modifications" that are of no consequence to our analysis here. Reporter's Notes, V.R.C.P. 24.

We review the denial of a motion to intervene as of right de novo. In re GMPSolar-Richmond, LLC, 2017 VT 108, ¶ 19, 206 Vt. 220, 179 A.3d 1232 .

However, we review discretionary decisions of trial courts "under an abuse of discretion standard of review." HSBC Bank USA N.A. v. McAllister, 2018 VT 9, ¶ 8, 206 Vt. 445, 182 A.3d 593. We therefore review the denial of a motion for permissive intervention for an abuse of discretion. Helm. v. Helm, 139 Vt. 225, 227, 424 A.2d 1081, 1082 (1981).

Because the timeliness of a motion to intervene is "a matter within the discretion of the court," normally we review the trial court's ruling on timeliness for an abuse of discretion. Ernst v. Rocky Road, Inc., 141 Vt. 637, 639, 450 A.2d 1159, 1160 (1982).

However, when — as here — a trial court denies a motion to intervene but makes no mention of the motion's timeliness, we are left without a ruling to review for an abuse of discretion. In such a case, if there are sufficient facts to decide the issue of timeliness within the record — and assuming neither party is seeking a remand to establish a disputed issue of material fact — then, in accordance with four federal circuit couts of appeal, we review timeliness de novo.

When a motion to intervene is filed, the timeliness requirement under Rule 24(a) and (b) is a threshold question. NAACP v. New York, 413 U.S. 345, 365 (1973) ("Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of [Federal Rule 24] that the application must be `timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.").

An intervenor bears the burden of meeting all of the requirements for intervention, including timeliness. See Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990). The timeliness of a motion to intervene is assessed using a totality-of-circumstances analysis. Ernst, 141 Vt. at 640, 450 A.2d at 1160.

We have identified four factors that may be considered in assessing timeliness: (1) possible harm to plaintiffs; (2) an intervenor's ability to have sought intervention sooner; (3) the progress of the case; and (4) the availability of other means to join case. Shahi v. Madden, 2010 VT 56, ¶ 10, 188 Vt. 142, 5 A.3d 869.

Here, intervenors did not move for intervention until May 2018, more than two years after the complaint was filed in April 2016. Based on the facts and circumstances of this case, we conclude that intervenors have failed to carry their burden to show that they sought intervention in a timely manner. We therefore affirm.