In re Russo (2011-004)(24-May-2013)(Skoglund, J.)(Robinson, J., joined by Dooley J., dissenting.)
SKOGLUND, J. Petitioner appeals a civil division order dismissing his post-conviction relief (PCR) petition for lack of jurisdiction. Petitioner sought to attack convictions for which his sentences had been completed, and the court concluded that petitioner was not “in custody under sentence” as required by 13 V.S.A. § 7131. Petitioner argued that he satisfied the custody requirement because, although his sentences were completed, they were used by the criminal division to hold him without bail pending trial on a different charge. Because petitioner has failed to allege that his pretrial incarceration was sufficiently linked to the convictions he seeks to attack, we conclude that petitioner failed to meet the jurisdictional requirements of the PCR statute, and affirm.
Sunday, July 7, 2013
Statute of limitations. Foreclosure of judgment lien denied because, despite amended judgment, lien expired eight years from original judgment.
Ayer v. Hemingway, 2013 VT 37 (24-May-2013)(Burgess, J.)(Robinson, J., dissenting).
Plaintiffs appeal from the trial court’s order granting summary judgment to defendants in this judgment lien foreclosure case. Plaintiffs argue that a 2001 judgment had been renewed or revived by a 2006 stipulated amended order, and that the court erred in concluding that their judgment lien had expired. We affirm.
The trial court correctly found that plaintiffs’ judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based. See 12 V.S.A. § 2903(a). Revival required the filing of a “new and independent action” on the judgment, see 12 V.S.A. § 506, which did not occurred here. Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). (judgments cannot be renewed by motion, but only by the filing of a “new and independent suit commenced in accordance with Rule 3.” )
Plaintiffs did not file a new complaint on the judgment. Instead, they filed a motion for a possessory writ of attachment that led to a stipulated amended judgment order regarding payment of the 2001 debt. This was not a new “final judgment” for purposes of 12 V.S.A. § 2903(a). The fact that this order might have been appealable does not change this result. Any other holding would create a continually moving statute of limitations. Were we to construe such post-judgment orders as starting a new limitations period, a party could extend the life of a judgment lien indefinitely by filing motions. The statute does not contemplate this result, and the need for certainty and predictability in the law compels us to reject such an approach. The statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits.
Robinson, J. dissenting, cannot concur in the majority's conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. The statute of limitations draws no distinction between "original" and "amended" judgments, and nothing in the language of the statute supports the notion that "judgment" has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903 ("A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based . . . .").
Note: See Flex-A-Seal, Inc. v. Safford, 2015 VT 40
Plaintiffs appeal from the trial court’s order granting summary judgment to defendants in this judgment lien foreclosure case. Plaintiffs argue that a 2001 judgment had been renewed or revived by a 2006 stipulated amended order, and that the court erred in concluding that their judgment lien had expired. We affirm.
The trial court correctly found that plaintiffs’ judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based. See 12 V.S.A. § 2903(a). Revival required the filing of a “new and independent action” on the judgment, see 12 V.S.A. § 506, which did not occurred here. Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). (judgments cannot be renewed by motion, but only by the filing of a “new and independent suit commenced in accordance with Rule 3.” )
Plaintiffs did not file a new complaint on the judgment. Instead, they filed a motion for a possessory writ of attachment that led to a stipulated amended judgment order regarding payment of the 2001 debt. This was not a new “final judgment” for purposes of 12 V.S.A. § 2903(a). The fact that this order might have been appealable does not change this result. Any other holding would create a continually moving statute of limitations. Were we to construe such post-judgment orders as starting a new limitations period, a party could extend the life of a judgment lien indefinitely by filing motions. The statute does not contemplate this result, and the need for certainty and predictability in the law compels us to reject such an approach. The statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits.
Robinson, J. dissenting, cannot concur in the majority's conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. The statute of limitations draws no distinction between "original" and "amended" judgments, and nothing in the language of the statute supports the notion that "judgment" has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903 ("A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based . . . .").
Note: See Flex-A-Seal, Inc. v. Safford, 2015 VT 40
Professional Responsibility; actual and implied bias. Lawyer who had adopted child from DCF had no actual or implied personal-interest conflict of interest that precluded representing client adverse to DCF.
In re K.F. , 2013 VT 39 (07-Jun-2013)(Robinson, J.)
Father appeals the termination of his parental rights on the grounds that the trial court erred in denying his motion for replacement counsel because his lawyer had a conflict of interest We affirm.
Father appeals the termination of his parental rights on the grounds that the trial court erred in denying his motion for replacement counsel because his lawyer had a conflict of interest We affirm.
According to father, his lawyer’s prior adoption of a child made the lawyer sympathetic to DCF and unable to provide zealous representation to father, creating a “personal interest” conflict that mandated her removal. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father, and the findings shown no actual bias.
Vermont Rule of Professional Conduct 1.7. deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). We have held that a judge who was an adoptive parent is not disqualified from adjudicating whether adoptees were entitled to disclosure of adoption information. In re Margaret Susan P., 169 Vt. 252, 733 A.2d 38 (1999). We explained “[personal and family circumstances are [not] appropriate considerations on which to presume bias or partiality.” Id. at 256-57, 733 A.2d at 42.
Similarly, here, the simple fact of counsel’s family circumstances without any showing of a current connection to DCF or this case is insufficient reason to presume counsel’s inability to represent father. Moreover, the record supports the trial court’s findings rejecting father’s suggestion that his lawyer’s lacked any zeal in representing him. The court did not abuse its discretion in denying father replacement counsel on this basis.
Vermont Rule of Professional Conduct 1.7. deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). We have held that a judge who was an adoptive parent is not disqualified from adjudicating whether adoptees were entitled to disclosure of adoption information. In re Margaret Susan P., 169 Vt. 252, 733 A.2d 38 (1999). We explained “[personal and family circumstances are [not] appropriate considerations on which to presume bias or partiality.” Id. at 256-57, 733 A.2d at 42.
Similarly, here, the simple fact of counsel’s family circumstances without any showing of a current connection to DCF or this case is insufficient reason to presume counsel’s inability to represent father. Moreover, the record supports the trial court’s findings rejecting father’s suggestion that his lawyer’s lacked any zeal in representing him. The court did not abuse its discretion in denying father replacement counsel on this basis.
Workers Comp: SCOVT reverses DOL re PPD for CPRS; allows AMA Guide impairment rating without AMA diagnosis!
Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (21-Jun-2013)(Robinson, J.)
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty. The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides. We reverse.
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty. The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides. We reverse.
Wednesday, June 19, 2013
Appeal untimely. Being away from mail during vacation or otherwise failing to open mail is not excusable neglect justifying extension of time for appeal. Extension of time for late “receipt’ of order under V.R.A.P. 4 unavailable because notice was “received” when order arrived in mailbox, not when lawyer looked in the mailbox.
Coles v. Coles 2013 VT 36 (Burgess, J.)
Father challenges the trial court’s denial of his motion to reopen the time in which to file an appeal from a maintenance and child support order. He asserts that his motion was timely under Vermont Rule of Appellate Procedure 4(c). We affirm.
Counsel failed to prove that he did not receive notice of the court’s decision within twenty-one days, and thus failed to meet the threshold requirements for relief under V.R.A.P.4(c), which provides:
The court’s docket entries indicate that an order was mailed to the parties on Monday, March 14, 2011, twenty days after entry of the order. Counsel was on vacation beginning Thursday, March 17, 2011, and returned to work on Monday, April 4, 2011. He indicated that the mail arrived during his absence and the thirty-day appeal period had expired by the time he opened his mail. Counsel did not offer any evidence as to when the notice actually arrived in the mailbox. Instead, counsel argued only that he “received” the order when he opened his mail.
This approach would obviate our jurisdictional time limits, and it would not serve the strong interest in finality of judgments. The rule is not designed to allow the trial court to reopen the time for appeal because an attorney has not opened his or her mail. Instead we hold the “receipt” of notice contemplated under Rule 4(c) is receipt in a party’s mailbox.
The delay was not due to excusable neglect under Rule 4(d). Jurisdictional time limits do not and cannot depend on the vagaries of an attorney’s vacation schedule. Being away from delivered mail during vacation or otherwise failing to open mail, without more, is not excusable neglect. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838 A.2d 98 (internal office procedure breakdown not excusable neglect as a matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (lawyer’s vacation and internal office procedure breakdown not excusable neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule not excusable neglect).
Father challenges the trial court’s denial of his motion to reopen the time in which to file an appeal from a maintenance and child support order. He asserts that his motion was timely under Vermont Rule of Appellate Procedure 4(c). We affirm.
Counsel failed to prove that he did not receive notice of the court’s decision within twenty-one days, and thus failed to meet the threshold requirements for relief under V.R.A.P.4(c), which provides:
In any civil action, the superior . . . court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 90 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.
(emphasis added.)
The court’s docket entries indicate that an order was mailed to the parties on Monday, March 14, 2011, twenty days after entry of the order. Counsel was on vacation beginning Thursday, March 17, 2011, and returned to work on Monday, April 4, 2011. He indicated that the mail arrived during his absence and the thirty-day appeal period had expired by the time he opened his mail. Counsel did not offer any evidence as to when the notice actually arrived in the mailbox. Instead, counsel argued only that he “received” the order when he opened his mail.
This approach would obviate our jurisdictional time limits, and it would not serve the strong interest in finality of judgments. The rule is not designed to allow the trial court to reopen the time for appeal because an attorney has not opened his or her mail. Instead we hold the “receipt” of notice contemplated under Rule 4(c) is receipt in a party’s mailbox.
The delay was not due to excusable neglect under Rule 4(d). Jurisdictional time limits do not and cannot depend on the vagaries of an attorney’s vacation schedule. Being away from delivered mail during vacation or otherwise failing to open mail, without more, is not excusable neglect. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838 A.2d 98 (internal office procedure breakdown not excusable neglect as a matter of law); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (lawyer’s vacation and internal office procedure breakdown not excusable neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule not excusable neglect).
Restitution for Mutual mistake. Neither negligence nor imputed knowledge on part of plaintiff is a defense if there is an actual mistake and circumstances show unjust enrichment.
Dover
Corp. v. First Wisconsin Mortg. Trust, 139 Vt. 217, 425 A. 2d
97 (1980).
Plaintiff, Dover
Corporation, purchased the Mt. Snow ski area from defendants for a specific
amount, subject to certain closing adjustments. The parties agreed to prorate
the sewage taxes for the taxable year 1977 as of the date of closing. At the
closing August 10, 1977, defendants'
agent represented that the sewage taxes had been paid in full for the fiscal
year April 1, 1977, to March 31, 1978. Based on this understanding, the sewage
taxes were prorated so that defendants received a credit for those taxes paid
by them for the period from the date of closing to March 31, 1978. However in fact the tax year was from January
1, 1977 to December 31, 1977, and the taxes were paid only through June 30,
1977.
Defendants
challenge the court's conclusion that plaintiff was mistaken as to the proper
taxable year, because Plaintiff had received a title certificate from a
local attorney noting, correctly, that the taxable year for sewage assessments
ran from January 1, 1977, to December 31, 1977. Defendants argue that
the knowledge of plaintiff corporation controls the issue of mistake and that
the court's finding that plaintiff had received the correct facts before the
closing adjustment precludes a claim of mistake.
"[A]
mistake is an unintentional act or omission arising from ignorance, surprise,
imposition or misplaced confidence, and it exists when a person under some
erroneous conviction of law or fact does or omits to do some act which, but for
the erroneous conviction, he would not have done or omitted." Ward
v. Lyman, 108 Vt. 464, 472, 188 A. 892, 896
(1937). See also
Restatement of Restitution § 6 (1937). The knowledge which may have been
imputed to plaintiff from plaintiff's attorney is not the issue. Certainly here
we have an example of misplaced confidence in the mistaken opinion of
defendants' agent. We find no error.
Defendants
further argue that the trial court abused its discretion in granting relief
despite plaintiff's lack of care and vigilance. But negligence of the party
injured should not prevent a court from correcting a mutual
mistake of fact. Ward
v. Lyman, supra. See also Restatement of Restitution § 59
(1937). Whether a mistake is to be corrected depends upon the circumstances of
the case. Here defendants were found to be unjustly enriched and plaintiff
alone would suffer injury if relief were not granted. We think the case affords
a solid ground for relief.
Judgment
affirmed.
Damages for negligent infliction of emotional distress rejected in legal malpractice case, not because there was no physical injury and no zone of danger, but because the type of representation did not involve deeply personal and emotional issues
Vincent v. DeVries, 2013 VT 34 (Robinson, J.)
This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.
Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.
The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l
Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.
Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff.
This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.
Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.
The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l
Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.
Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff.
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