SCOVT reverses summary judgment for defendant based on finding in earlier case, holding issue preclusion does not apply to a finding that was untested on appellate review.)

Daiello v. Town of Vernon, 2018 VT 17  [2/16/2018]

EATON, J. Plaintiff landowner, who built a residence on leased property owned by defendant, Town of Vernon, appeals the superior court’s order granting the Town summary judgment with respect to his claim that the Town breached a covenant of quiet enjoyment implied in the 1838 lease by not providing him access to the property. We reverse and remand for further proceedings.

The trial court granted the Town’s summary judgment motion, ruling that as a matter of law, the Town did not breach the covenant because the finding in Merritt v. Daiello that plaintiff had access to his property from the west precluded plaintiff from relitigating that fact.

In Merritt v. Daiello, plaintiff challenged on appeal the trial court’s finding of access to his property from the west, but this Court declined to review that finding because it upheld on different grounds the trial court’s conclusion that there was no easement by necessity. Commentators and courts alike have held that issue preclusion should be denied with respect to any finding that was untested on appellate review. See Restatement (Second) of Judgments § 27 cmt. o ("If the appellate court upholds one of the[] determinations [by the lower court] as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive [only] as to the first determination.")

Accordingly, plaintiff is not precluded in this proceeding from relitigating whether he has access to this property from the west.

The second preclusion question raised herein is whether the parties are precluded from relitigating in this case whether Stebbins Road was properly laid out by the Town The issue of whether the Town properly laid out Stebbins Road was raised in Merritt v. Daiello, determined by the superior court in the Merritts’ favor, and upheld on appeal. The Town is correct that because it was not a party in Merritt v. Daiello, it is not precluded from arguing that Stebbins Road was properly laid out as a public road.

On remand, if the court rules the Town properly laid out Stebbins Road and thus did not interfere with plaintiff’s access over that road this would result in two inconsistent judgments. By not joining the Town in their earlier action seeking to prevent plaintiff from accessing his property through their property based on a claim that the Town had failed to properly lay out the public road crossing their property, the Merritts ran the risk that issues resolved in that action would be subject to religitation in any later action involving the Town and themselves as indispensable parties.

One wrongful death distribution is not binding on future distributions.

In re Estate of Dezotell, 2016 VT 14 (filed 2/5/2016)

REIBER, C.J. The questions presented by this pro se appeal by decedent's daughters are 1) whether, in distributing the proceeds of a wrongful-death settlement to the decedent’s spouse and children, the trial court was bound by the provisions of an earlier settlement distribution, and, 2)  if not, whether the court erred in curtailing an evidentiary hearing to divide the settlement in proportion to the pecuniary injuries suffered. We hold that that the trial court correctly concluded that it was not bound by the prior order, but erred in limiting the evidentiary hearing. Accordingly, we reverse and remand.

At the time of his death, decedent had had six daughters and had been married for about eight months to his wife Maria who was pregnant with the couple's first child Roger.  Maria was appointed to serve as the administrator of the estate, and petitioned the superior court under 14 V.S.A. § 1492(c) to distribute settlement proceeds that totaled about $135,000.

The statute provides "[s]uch distribution, whether of the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries suffered, the proportions to be determined . . . in such manner as the superior court . . . shall deem proper and after a hearing at such at such time as the court or judge may direct, upon application made by such personal representative or by the wife, husband or any next of kin." 14 V.S.A. § 1492(c).

Following an evidentiary hearing, the court issued a written ruling in awarding $100,000 to Maria and Roger, $25,000 to a minor daugher, Melissan, with the "primary goal of conserving as much as possible of this asset for Melissan's college or other educational expenses", and $2,500 each to the remaining adult daughters, noting that none of the daughters could have realistically expected any significant financial assistance from decedent.

  

Five years later, Maria  again petitioned the court for a distribution of additional settlement proceeds of about $205,000. The petition stated that the beneficiaries had agreed to  receive the same proportion of the new settlement that they had received under the first.  The court approved the stipulated distribution.

Another five years later Maria filed a third petition for distribution of an additional $204,000 settlement. She proposed to distribute the money using the same percentage formula as the second distribution, with one exception for Melissan, who had come of age.

The matter was contested. The court ruled that it was not bound by the prior distributions in the current proceeding and set the matter for a new hearing  in order to determine the division of the proceeds from the settlement. After taking some testimony the court adjourn the hearing and later issued a written ruling explaining that it had concluded further evidence was unnecessary.

The court awarded 1.88% of the settlement funds to each of decedent's daughters, and the balance of 88.72%, to Maria on behalf of herself and Roger.

On appeal, daughters contend the trial court was collaterally estopped from reducing Melissan's share of the third settlement. 

This argument is unpersuasive. Successive distributions—even in the same case—may reflect entirely different "equities" and "expectations" depending upon the ages of the beneficiaries at the time, their economic circumstances and needs, previous awards received, and the amount available for distribution. \  Each of the three distribution petitions at roughly five-year intervals presented, by definition, a separate issue for the court to determine a fair and equitable distribution of each settlement in light of the circumstances then presented. 

The trial court was correct, therefore, in concluding that a fair apportionment of the third settlement should be measured, in part, by the parties' current circumstances. This was reflected in its decision to reduce Melissan's percentage based on the fact that she was no longer a minor.

We conclude however that the trial court erred in failing to apply this principle consistently to the other beneficiaries or the proceeding as a whole when it ultimately ruled that further evidence was unnecessary.and t that it would not "revisit[ ]" the 2004 finding that the daughters could not have reasonably expected much financial assistance from their father, Although the finding that decedent—while he was alive—had never been able to provide a great deal for his daughters in material terms certainly remained true, it did not compel the conclusion that 1.88% of the third settlement was all they could ever reasonably expect, or all that decedent would ever want them to have, upon his death.

We conclude, accordingly, that the trial court erred in restricting the daughters’ introduction of additional evidence relevant to the distribution of the third settlement in proportion to the injuries from their loss, and therefore reversed and remanded for further proceedings consistent with the views expressed herein.

ROBINSON, J., dissenting. Under Vermont’s statute governing wrongful death actions, damages are determined “with reference to the pecuniary injuries” of the surviving spouse and next of kin, and are distributed among them in proportion to their respective injuries. 12 14 V.S.A. § 1492(b). The determination of the wrongful-death-act beneficiaries’ pecuniary injuries is ultimately one of fact. For that reason, when a court adjudicates the amount of the damages awardable to the personal representative of the beneficiaries on account of a wrongful death, or the relative proportion of those damages to be allocated to each of the respective statutory beneficiaries, that determination is an adjudicated fact that has preclusive effect in subsequent actions when the criteria for collateral estoppel are satisfied.

 In this case, those criteria are satisfied, and the earlier order adjudicating the relative proportion of the statutory beneficiaries’ pecuniary damages has preclusive effect in subsequent proceedings in which the relative proportion of the statutory beneficiaries’ pecuniary damages is at issue.

 In asserting that the wrongful death statute requires a “fair and equitable distribution,” , of each wrongful death settlement in light of the circumstances then presented, the majority adopts a framework that is at odds with the wrongful death statute and our cases, and embraces a holding that creates significant practical problems. 

For these reasons, I dissent. The plain language of the wrongful death statute, and our case law applying that statute, make it clear that the damages that can be awarded in a wrongful death case are determined with reference to the pecuniary injuries of the surviving spouse and next of kin, that the proceeds of a wrongful death action are distributed among statutory beneficiaries in proportion to their respective injuries, and that the factors driving the calculation of wrongful death damages and the distribution of wrongful death proceeds are one and the same. 

I would treat the proportional distribution reflected in the 2004 order as preclusive, and would distribute the current proceeds in the same proportion.

SCOVT allows relitigation of final decision addressing exclusive "jurisdiction" of divisions of Superior Court

Cameron v. Rollo 2014 VT 40 (25-Apr-2014)

CRAWFORD, J. This case presents a single legal issue: whether the family division has exclusive jurisdiction over the distribution of marital property acquired during a marriage that ends in annulment. First the family division ruled that "[s]ince the marriage was void at its beginning, this court does not have jurisdiction to resolve this dispute. Then the civil division held that the civil division and the small claims court lacked jurisdiction over the division of marital property. We granted permission to appeal to review the legal question of which court has jurisdiction to distribute property under the circumstances of this case. We affirm the decision of the civil division in this case that exclusive jurisdiction over the parties’ property division is conferred by statute to the family division.

This idea that a marriage annulled on grounds of bigamy is void from its inception underlies the family division's refusal in this case to divide the parties' property. But the Legislature extended the remedy of property division to the parties to an annulment when it provided for property division in all cases filed under Chapter 11 of Title 15. 15 V.S.A. § 751(a). Chapter 11 of Title 15 encompasses annulment, divorce, and legal separation.

The statutory grant of jurisdiction to the family division is exclusive. There is no "overlapping jurisdiction—matters that belong in family court may not be brought in superior court." Rogers v. Wells, 174 Vt. 492, 494, 808 A.2d 648, 650 (2002) (mem.). Section 31(1) of Title 4, recently enacted as part of the unification of the judiciary, excludes from the civil division cases that are subject to the jurisdiction of the family division. See also 4 V.S.A. § 33(4).

We have not conistently maintained this  boundary between the family and civil division in property disputes. Compare Tudhope v. Riehle, 167 Vt. 174, 178-80, 704 A.2d 765, 767-68 (1997) with Slansky v. Slansky, 150 Vt. 438, 442, 553 A.2d 152, 154 (1988), The boundary, however, is clear when the issue is whether marital property belongs to one spouse or the other.  By holding that the family division has exclusive jurisdiction over the division of marital property, we seek to discourage overlapping cases in both courts.

DOOLEY, J., dissenting. To the majority this case is about subject matter jurisdiction over property disputes in annulment actions, an issue that will rarely, if ever, rise again. In my opinion, this case is really about the preclusive effect of subject matter jurisdiction determinations. The issue the majority chooses to address is legitimate, but the issues it largely ignores are critical and command a different result. Thus, I dissent.

Reducing the case to its essentials, plaintiff alleges that the person to whom he thought he was married  stole his property while he was incarcerated. This is a conversion action with respect to property owned by plaintiff and possessed at one time by defendant but not in either's possession at the time of the annulment. I consider it debatable whether the conversion action is exclusively within the jurisdiction of the family division. See LaPlume v. Lavallee, 2004 VT 78, ¶¶ 8-9, 177 Vt. 526, 858 A.2d 255 (holding that plaintiff's claim for money damages against former partner for retention of property was conversion claim subject to jurisdiction of small claims court).  But we need not, and should not, reach that question

We made a great stride forward in ensuring finality of judgments against lack-of-subject-matter-jurisdiction claims where the question of subject matter jurisdiction has already been litigated by adopting the Restatement (Second) of Judgments § 12 (1982). See Quinn v. Schipper, 2006 VT 51, ¶ 8, 180 Vt. 572, 908 A.2d 413 (mem.). Under § 12  a judgment generally precludes relitigation of subject matter jurisdiction in subsequent litigation. Restatement (Second) of Judgments § 12 (1982)(indicating a party is foreclosed from litigating subject matter jurisdiction in a subsequent lawsuit unless the decision on jurisdiction was "a manifest abuse of authority," the judgment at issue "would substantially infringe the authority of another tribunal," or the rendering court was incapable of making an adequately informed assessment of its own jurisdiction and procedural fairness would require the party seeking to avoid the judgment to have the opportunity to belatedly attack jurisdiction).

None of the exceptions apply. To say that the family division's ruling was "so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority" creates an exception to issue preclusion so broad as to eat up the rule and bring us back to the days of raising lack of subject matter jurisdiction over and over. The family division ruling may have been wrong, but it is not a manifest abuse of discretion, a clear usurpation of power, or a ruling without an arguable basis.  Restatement (Second) of Judgments § 12(1).