The South Burlington School District appealed an environmental court decision approving Howard Center, Inc.'s application for interior renovations to an existing medical office to accommodate a new methadone clinic. The District argued the court erroneously concluded that: (1) the clinic was a permitted "medical office" use under the South Burlington Land Development Regulations and therefore did not require site-plan or conditional-use review; (2) the Traffic Overlay provisions of the Regulations did not apply to the permit application; and (3) general safety concerns were not a permissible consideration under the Regulations in reviewing the permit application. Finding no reversible error, the Supreme Court affirmed. View "In re Howard Center Renovation Permit" on Justia Law

The single issue in this appeal was whether payments by employer 863 To Go, Inc. to its delivery drivers should have been excluded from the calculation of employer's contribution to Vermont's system of unemployment compensation. "In a process known to anyone who has ever ordered a pizza, the customer calls in his or her order. A bilateral contract based on an exchange of mutual promises is formed. The customer promises to pay for the meal either upon delivery or before. The price is set, except for any gratuity, as is the description of the meal. Employer promises to obtain the food and arrange for its delivery. . . . The delivery driver plays no discernible role in creating the contract of sale. The record contains no evidence that he or she can vary the terms of sale, either with respect to price or to product. The driver's only role is to deliver the food and to pick up the purchase price if it has not already been paid. He or she has not 'sold' anything. He or she has, obviously, 'delivered' dinner." Since the "selling" requirement of the exemption in section 1301(6)(C)(xxi) was not met, the Supreme Court affirmed the decision of the Employment Security Board that employer was obligated to pay an unemployment compensation contribution to the Department of Labor with respect to its delivery drivers. View "863 To Go, Inc. v. Department of Labor" on Justia Law

In 2011, the Agency of Transportation advertised for bids to reconstruct a half-mile section of North Main Street in downtown Barre. Luck Brothers submitted the low bid and was awarded the contract for the project, which it started in the summer of 2011. In June 2012, Luck Brothers submitted a claim to the Agency seeking approximately $855,000 in additional compensation beyond the bid amount based on alleged differing site conditions from those assumed in the contract. One year later, Luck Brothers submitted a supplemental claim, making the total claim approximately $1.1 million. Less than three months after submitting its $855,000 claim, Luck Brothers filed a complaint against the Agency in superior court seeking, among other things, declaratory relief and compensatory damages. Specifically, the complaint alleged breach of contract, negligent misrepresentation, and breach of an implied warranty on the part of the Agency, and sought penalties under the Prompt Pay Act. Luck Brothers appealed the superior court’s decision to grant the Agency’s motion to dismiss Luck Brothers’ lawsuit on grounds that the company failed to exhaust its administrative remedies before pursuing a remedy in the superior court. Upon review, the Supreme Court affirmed the superior court’s decision, but clarified the standard of review in appeals to the Vermont Transportation Board from Agency determinations under the claims process for construction contracts. View "Luck Brothers v. Agency of Transportation" on Justia Law

On July 3, 2009, plaintiffs Michaela and David Martin and their three-year-old daughter Gracie spent the day at a campsite that the family rented at a campground in Island Pond, Vermont. Defendants John and Joanna Christman rented a campsite near the Martins. Michaela took Gracie to a playground adjacent to the Christmans’ site. The Christmans were camping with two of their boxer dogs, one of which was a two-year old male named Diesel. They had a table of their own which was sheltered with a gazebo. Joanna Christman tied Diesel to a pole supporting the gazebo. Gracie asked John Christman if she could pet Diesel, and he said that she could. Without warning Diesel attacked Gracie, knocking her to the ground and biting her face. John Christman forced his dog to let go of the child. The Martins took Gracie to North Country Hospital where she received surgery to repair her wounds. The Martins brought suit against the Christmans, their insurer, and the campground on several theories, including strict liability and negligence. The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that existing Vermont precedent required proof of negligence to recover against a dog owner for damages caused by his or her dog. It also dismissed a "direct action" claim against the Christmans’ insurer. The parties stipulated to the dismissal with prejudice of the negligence claim and a related claim of premises liability. This appeal was limited to the trial court’s dismissal of the strict liability claim. The Vermont Supreme Court declined to change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. "In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision." View "Martin v. Christman" on Justia Law

The issue this case presented to the Supreme Court centered on the pay due to a state employee pursuant to a collective bargaining agreement when the employee temporarily takes on duties at a higher level. Grievant Christopher Spear appealed a decision of the Vermont Labor Relations Board that the State, as grievant’s employer, did not violate the nonmanagement unit collective bargaining agreement between the Vermont State Employees’ Association (VSEA) and the employer when it provided grievant with “higher assignment pay” of a flat five percent of his regular pay rather than placing, or “slotting,” him to a step in the pay grade associated with the higher assignment duties that was at least five percent higher than his regular pay. The Board found the agreement’s provision governing higher-assignment pay ambiguous and concluded, based on the evidence presented, that the parties intended to calculate higher-assignment pay using a flat rate without slotting. Finding no reversible error, the Supreme Court affirmed. View "In re Spear" on Justia Law

Husband Gilles Richard appealed a family court order awarding wife Ellen Richard interest on a payment due under the final divorce decree. Husband argued that the award of interest was an impermissible modification of the final decree. Pursuant to the final divorce judgment, husband had a fixed obligation to pay wife $11,500 in cash or through QDRO, and any delay in payment was subject to interest by operation of law. "The trial court’s approach to ordering the statutorily due interest in this case was admittedly confusing - the court purported to add a 'clarifying' provision to the final divorce decree, but the clarifying language was nothing more than a statement of the law that applies to post-judgment interest even without the 'addition' to the decree." The trial court did not substantively modify its final property division after the fact; the language it purported to add to the final order was entirely redundant. The trial court’s ruling was not a substantive modification at all; the final order had the exact same implications for husband’s obligation to pay, the timing of that obligation, and his liability for interest after the trial court’s order as before. To the extent that husband argued that the absence of any reference to interest in the final divorce decree reflects “an implied ruling that no interest would accrue prior to transfer,” regardless of husband’s delay in making that transfer, the argument is squarely at odds with well-established law providing for post-judgment interest on fixed obligations. View "Richard v. Richard" on Justia Law

Landowners Owen and Katherine Beauchesne appealed various proceedings involving their complaints challenging the operation of Hale Mountain Fish and Game Club. Here, they appealed the Environmental Division of the superior court's judgment that Hale Mountain was entitled to reissuance of a zoning permit for certain enumerated improvements on its property once it received site plan approval from the Town of Shaftsbury Development Review Board. Based primarily on principles of preservation and res judicata, the Supreme Court affirmed the superior court’s judgment. View "In re Hale Mountain Fish & Game Club" on Justia Law

Plaintiff appealed two superior court decisions in a personal-injury negligence action: (1) an order dismissing all claims against defendant Robert Merrill, Sr., in his individual capacity, on summary judgment; and (2) an order granting partial judgment as a matter of law during trial, concluding that any liability of defendant Springfield Lodge No. 679, Loyal Order of Moose, Inc., could not be predicated on the action or inaction of Mr. Merrill, Sr., its governor. Plaintiff, attended a New Year's Eve party at the Springfield Lodge when a fight broke out between two other party guests, Danny Snide and Robert Merrill, Jr., the adult son of defendant Robert Merrill, Sr. At the time, Merrill, Sr. was the governor of the Lodge, the highest position in the Lodge hierarchy, and was an unpaid volunteer. Eventually, there was a scuffle in the men’s room involving Merrill, Jr. and an unnamed man. Merrill, Sr. arrived and asked another person to keep Merrill, Jr. in the bathroom while Merrill, Sr. went to look for the unnamed man. Merrill, Jr. and began fighting Snide, by which plaintiff was injured. In addition to alleging his injury, plaintiff submitted selected pages from an Orientation Guide for New Officers listed the duties of the governor of the Lodge, which plaintiff asserted obligated the Governor to take action to prevent the misconduct of members on Lodge property. In reviewing plaintiff's appeal, the Supreme Court found the Guide offered no such language obligating the Lodge Governor as plaintiff maintained. "For that reason, the trial court’s summary judgment decision dismissing the claims against Merrill, Sr. is correct in its result. We also conclude that the court could have gone further and provided the Lodge summary judgment on the claims against it that were premised on a theory of common-law respondeat superior for the action or inaction of Merrill, Sr. . . . Merrill, Sr.’s status as a social guest in the Lodge dining and bar facility is an additional reason why he had no duty to plaintiff to prevent the incident that caused injury to him and why the Lodge has no liability based on Merrill, Sr.’s inaction." View "Buxton v. Springfield Lodge No. 679, Loyal Order of Moose, Inc." on Justia Law

Petitioner appealed a trial court order granting summary judgment to the State on his petition for post-conviction relief (PCR). Petitioner was originally charged with aggravated sexual assault for allegedly penetrating his eight-year-old step-granddaughter with his finger. A presentence investigation report (PSI) contained statements referring to petitioner’s digital penetration of the victim. The probation officer recommended a sentence of eight-to-fifteen years, all suspended except eight years. In his written response to the PSI, petitioner focused on rebutting the contention that he had minimized his conduct and the impact that it had on the victim, and he highlighted mitigating factors, such as his age, health, and remorse. Petitioner did not object to the mention of penetration in the PSI. Petitioner’s trial counsel argued for a sentence of one-to-five years, all suspended but one year, but did not address the penetration issue. In response, the State argued only that petitioner’s allocution further illustrated his lack of empathy for the victim. The court sentenced petitioner to eight-to-fifteen years to serve. After sentence was imposed, petitioner’s attorney objected that “[t]his was a plea to [a charge of lewd and lascivious conduct with a child] and the court’s conclusions are clearly beyond the offense conduct relative to [the] alleged penetration.” He also asserted that the allegations of penetration “were never attested and were never probed” and that the State had conceded that the victim would not be able to substantiate penetration. In a direct appeal, petitioner argued that the trial court erred as a matter of law by sentencing him based on digital penetration when this was a disputed issue, no evidence was presented concerning penetration at sentencing, and the State admitted that it could not prove this fact. The Supreme Court rejected petitioner’s assertion that he was not required to object to the mention of penetration in the PSI because the State had admitted that it could not prove penetration. Furthermore, the Court concluded that because petitioner did not challenge the reliability of the penetration evidence prior to being sentenced, he had waived any objection to the court’s use of this evidence on appeal. Petitioner then filed a PCR petition, arguing that his trial counsel was ineffective for failing to object to the allegation of penetration in the PSI, and that, but for this error, a reasonable probability existed that he would have received a lesser sentence. The State moved for summary judgment, asserting that regardless of whether petitioner could establish deficient performance by counsel, he could not establish that the sentencing court relied on the finding of penetration in reaching its sentence, and thus, he could not show prejudice. The court granted summary judgment to the State. Upon review of petitioner's PCR appeal, the Supreme Court concluded petitioner failed to establish a reasonable probability that he would have received a lesser sentence but for counsel’s unprofessional errors. Summary judgment was therefore properly granted to the State. View "In re Allen" on Justia Law

Defendant Richard Howell appealed a judgment in favor of plaintiff Kneebinding, Inc. on his counterclaims alleging breach of contract, tortious interference with contract, defamation, trademark violation, and misappropriation of trade secrets in this commercial contract and employment dispute. Howell contended on appeal that the trial court erred in concluding that: (1) a contractual release barred the counterclaims arising prior to the date of the release; and (2) the release was supported by sufficient consideration. In 2006, Howell formed Kneebinding, Inc. to develop a ski binding based on a new release mechanism that he had invented. John Springer-Miller provided major financing and received a controlling interest in the corporation. Pursuant to a series of agreements, Springer-Miller became the chairman of the board of directors and Howell was employed as president and chief executive officer. An employment agreement executed by the parties in November 2007 provided that Howell would be an at-will employee with an annual base and, in the event his employment was terminated "other than for Cause," Howell would receive severance payable in equal installments over a period of one year. Less than a year later, the company’s board of directors voted to terminate Howell’s employment without cause. Negotiations between the company and Howell over the terms of his departure resulted in a letter from Springer-Miller on behalf of the company to Howell confirming the terms of the severance arrangement. Pertinent to the appeal was an exhaustive list of claims which Howell agreed to release, "including, but not limited to," employment discrimination under federal and state law and tort and contract claims of every sort, subject to several exceptions, including Howell’s rights under the parties’ Voting Agreement and Investors’ Rights Agreement. In 2009, Kneebinding filed a lawsuit against Howell alleging that he had violated certain non-disparagement and non-compete provisions of their agreements, committed trademark violations and defamation, tortiously interfered with contracts between Kneebinding and its customers and distributors, and misappropriated trade secrets. Howell answered and counterclaimed, alleging counts for breach of contract, defamation, invasion of privacy, misappropriation, unfair competition, tortious interference with business relations, patent violations, and intentional infliction of emotional distress. Kneebinding moved for summary judgment on Howell’s counterclaims, asserting that they were barred by the release set forth in the letter agreement. The trial court granted the motion with respect to all of the counterclaims that arose prior to the execution of the release on and denied the motion as to those claims that arose after the release. Howell asserted that, in granting summary judgment on the counterclaims, the trial court erred in finding a valid release because he never signed the separate release of claims set forth in Attachment B to the letter agreement. Finding no reversible error, the Supreme Court affirmed the trial court. View "Kneebinding, Inc. v. Howell" on Justia Law