SCOVT affirms grant of summary judgment dismissing constitutional claims, denial of new trial and verdict that Plaintiff had not proven the accident caused any injuries. No common benefit interest in criminal prosecution of third party.

Cheryl J. Brown v. State of Vermont, 2018 VT 1 [filed1/12/2018]

EATON, J. Cheryl Brown appeals from a jury verdict finding the State responsible for a motor vehicle accident, but also finding Brown had not proven any resulting injuries and thus was not entitled to any damages. Brown alleges several errors in pre-trial and trial rulings, as well as in the failure to grant her a new trial. We affirm

Before trial, the court granted the State’s motion for partial summary judgment, dismissing Brown’s constitutional claims. The Court dismissed the due process and equal protection claims under the United States Constitution on the basis that Brown had only sued the State, and not Denis personally, and that the State was not a “person” for claims arising under 42 U.S.C. § 1983.

Because Brown’s suit was against the State, and because, under 42 U.S.C. § 1983, a state is not a “person,” as is required to maintain the claim, summary judgment for the State was proper on her equal protection and due process claims.

The court further ruled that Brown lacked standing to assert any claim based on the State’s failure to prosecute Denis. The court also dismissed the Common Benefits Clause claim because Brown lacked any cognizable interest in the prosecution or discipline of Denis and because her ability to file suit against the State as a result of the accident showed her due process rights were not impeded.

The Common Benefits Clause of the Vermont Constitution and the federal Equal Protection Clause differ markedly in language, historical origin, purpose, and development. The purpose of the Common Benefits Clause is to ensure that protections conferred by the State are for “the common benefit of the community” and not just a part of the community. Any potential constitutional tort claim based on a violation of Article 7.3 “must show the denial of a common benefit” due to “disparate and arbitrary treatment when compared to others similarly situated.” Id.

There is no deprivation of a common benefit because Brown has no legally cognizable interest in the prosecution of Denis, or any criminal or disciplinary consequences that may ensue. Summary judgment for the State was proper on Brown’s Common Benefits claim.

SCOVT reverses denial of joint motion to modify final property division order; such relief is authorized in limited circumstances under Rule 60

Sandra L. Penland (Warren) v. John W. Warren, Jr., 2018 VT 70 

REIBER, C.J. Husband appeals the trial court’s denial of husband and wife’s joint motion to modify their final divorce order. The issue in this case is whether the trial court has jurisdiction under Vermont Rule of Civil Procedure 60(b)(6) to modify a property-division order based on the agreement of the parties after the divorce order has become absolute. We hold the court does have jurisdiction, and accordingly we reverse and remand.

The court declined to exercise its discretion because  it found, as a matter of law, that it lacked jurisdiction to modify the property division. Whether the court has authority to exercise its discretion is a legal issue that we review de novo.

Under Rule 60(b), “the court may relieve a party . . . from a final judgment, order, or proceeding” for several enumerated reasons, such as mistake, V.R.C.P. 60(b)(1), and fraud, V.R.C.P. 60(b)(3). Rule 60(b)(6) authorizes relief for “any other reason justifying relief from the operation of the judgment.” The subsection is available only where the other criteria under Rule 60(b) do not apply.

Rule 60(b)(6) is available and appropriately used to provide relief from a final property-division order where “extraordinary circumstances” justify relief “to prevent hardship or injustice.” Wilson v. Wilson, 2011 VT 133, ¶ 5, 191 Vt. 560, 38 A.3d 50 (mem.) (quotations omitted). This opportunity for relief applies to final property divisions in divorce orders as it does to other final orders and judgments. See id. ¶¶ 5-6 (affirming that court can modify divorce order under Rule 60(b)(6) only if there are “unusual circumstances” that “would warrant relief from a judgment generally” (quotations omitted))

In considering whether such circumstances exist here, the court should note that the parties have agreed to a stipulated modification. This is not a situation where one or both parties seek to continue litigation past its end. See Richwagen, 153 Vt. at 4, 568 A.2d at 421 (stating “the grounds for relief authorized under Rule 60(b)(6) are broad” but limited by need for “certainty and finality of judgments so that litigation can reach an end”). Rather, this situation is an attempt to respond in a mutually beneficial way to emerging circumstances. Although the court has discretion to decline to accept a stipulated modification, it is more likely that modification under Rule 60(b)(6) is appropriate where the parties have stipulated to an agreement.

SCOVT affirms denial of motion to vacate arbitration award, because participation in arbitration waived objection to validity of arbitration agreement.

Adams v. Barr, 2018 VT 12 [filed February 2, 2018]

ROBINSON, J. The critical question in this case is whether a party who participates extensively and without objection in an arbitration proceeding for nearly seven months prior to the actual arbitration hearing waives an objection to the validity of the arbitration agreement. Lesley Adams, William Adams, and Adams Construction VT, LLC (collectively Adams Construction) appeal the trial court’s denial of their application to vacate an arbitration award in favor of Russell Barr and the Barr Law Group (collectively Barr Law Group) and against Adams Construction. Because we conclude that Adams Construction waived its challenge to the validity of the arbitration agreement, we affirm

SCOVT dismisses appeal seeking advisory opinion.

In re Investigation into Programmatic Adjustments to the Standard-Offer Program,2018 VT 52 [filed 5/11/2018

REIBER, C.J. Appellant Renewable Energy Vermont (REV) asks this Court to reverse and remand an order of the Vermont Public Utility Commission1 that altered technology allocations in the standard-offer program for renewable energy projects. We conclude that REV seeks an advisory opinion and therefore dismiss the appeal for lack of jurisdiction.

“It is the tradition of constitutional common law that the establishment of legal doctrine derives from the decision of actual disputes, not from the giving of solicited legal advice in anticipation of issues.” Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977). In other words, “ ‘courts are not instituted to render advisory opinions.’ ” Baker v. Town of Goshen, 169 Vt. 145, 151, 730 A.2d 592, 596 (1999) (quoting In 8 re Constitutionality of House Bill 88, 115 Vt. at 529, 64 A.2d at 172). The issues raised by REV are premature, and we therefore lack jurisdiction to consider them. See id. at 152, 730 A.2d at 597 (dismissing appeal that sought impermissible advisory opinion).

After Supreme Court affirms a decision trial court is without subject matter jurisdiction in the absence of an express remand.

John Moyers v. Sheun Lai Poon and Brenda Lee Poon, 2018 VT 27 [filed 3/9/2018]

EATON, J. Following a decision from a three-justice panel of this Court issued on June 26, 2017, * involving these parties and this litigation and affirming a final judgment order, the civil division attempted to conduct further hearings as if the matter had been remanded. The Poons challenged continuation of the litigation by the trial court, asserting that, in the absence of an express remand from the Supreme Court in the June 26th decision, the trial court lacked subject matter jurisdiction to conduct further hearings. The trial court denied the motion and the Poons were granted permission by the Supreme Court to appeal the denial on an interlocutory basis. We reverse.

In the June 26th decision, this court affirmed the trial court’s decision in all respects except for the grant of injunctive relief, which was stricken. In all other respects, the judgment is affirmed.”). In the absence of a finding that the Poons had trespassed, we held there was no entitlement to an injunction. Id. at *5-6. The court did not remand the case to the trial court for determination of trespass. Id.

We have long recognized that unless a remand is ordered when the final judgment or decree is entered in the Supreme Court, the lower court is without jurisdiction to consider the case further. Turner v. Bragg, 114 Vt. 334, 336, 44 A.2d 548, 549 (1945). If Moyers felt a remand was necessary to consider the trespass claim, his remedy was to file for reargument seeking a remand to the trial court. He did not do so. To proceed as he did, by filing a motion in the trial court where there had been no remand, ignores the finality of Supreme Court decisions “It is the rule that a mandate or an order of remand is necessary to reinvest the lower court with jurisdiction to proceed with the case.” Sanders v. Loyd, 364 S.W.2d 369, 371 (Tenn. Ct. App. 1960). ¶ 10. trial court is without jurisdiction to consider the instant case further and the motion to dismiss for lack of subject matter jurisdiction should have been granted. The judgment rendered June 26th by this Court, which did not include a remand, was final.

SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.

In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant) 2018 VT 55 [filed 5/25/2018]

REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal. We affirm.

The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission does not have open-ended authority to change a permit or grant an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

An extension of time must be requested within thirty days of the initial period of appeal, and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.

SCOVT affirms denial of motion to enlarge the time to file a notice of appeal; Board did not abuse its discretion in holding that attorney’s failure to notify the Board of his new address was not excusable neglect.

In re Grievance of Edward Von Turkovich, 2018 VT 57 [filed 5/25/2018]

REIBER, C.J. Grievant Edward von Turkovich appeals the decision of the Vermont Labor Relations Board denying his motion to enlarge the time for him to file a notice of appeal. We affirm.

After filing a grievance with the Board on behalf of employee and opposing the employer’s motion to dismiss, employee’s attorney moved his office, notifying the Post Office of his new address —but not the Board, required by Board rules. The Board sent its decision dismissing the grievance to the attorney, return-receipt-requested. The Post Office sent it back to the Board with the attorney’s new address. By the time the attorney got the decision, more than 30 days had passed since the dismissal.

Because the attorney failed to update his mailing address with the Board in a timely manner, grievant did not receive notice of the Board’s order within the thirty-day appeals window. Applying the Pioneer test articulated by the United States Supreme Court, we agree with the Board that the factors of delay, prejudice, and good faith weigh in favor of grievant. But our primary focus must be the reason for the delay. The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect.