In consolidated appeals, the issue before the Supreme Court presented centered on whether the same prior conviction for driving under the influence (DUI) could serve both to criminalize a refusal to submit to an evidentiary blood-alcohol test under 23 V.S.A. 1201(b) and to enhance the penalty for that offense under 23 V.S.A. 1210. The trial court held that the statute prohibited such dual use, and the State appealed that decision.  After careful consideration of the two cases, the Supreme Court reversed, concluding that the plain language of the statute allowed the same prior DUI conviction to be used both as an element of criminal refusal and to enhance the penalty for the refusal.View "Vermont v. Wainwright" on Justia Law

Defendant appealed the trial court's refusal to vacate a default judgment against it. This dispute arose from a 2009 contract between plaintiff LaFrance Architect, d/b/a Lake Architectural, and defendant Five Point Development South Burlington, LLC. Under the contract, plaintiff was to provide defendant architectural services for the construction of a Walgreens in South Burlington. Plaintiff invoiced defendant for services rendered, but two days after the invoice was payable and three days after the store opened, defendant sent plaintiff a letter indicating that defendant was terminating plaintiff's services due to an unspecified failure to fulfill the contract and unspecified "significant design errors that caused additional costs."  Plaintiff responded by filing notice of a mechanics lien. Defendant then secured a bond to discharge the mechanics lien, but failed to send a copy of the bond to plaintiff. Plaintiff later filed suit to perfect its mechanics lien by filing a verified complaint with a request for attachment and a claim for damages. Because the parties' contract contained mandatory mediation and arbitration provisions, plaintiff also filed a motion for stay, requesting that the court consider its motion for attachment but then stay proceedings pending mediation and arbitration as required by the contract. Upon review of the matter, the Supreme Court held that the trial court improperly declined to consider the strength of defendant's proffered defenses to its motion to vacate the default judgment, but that defendant's Rule 60(b) motion did not establish a prima facie case to support a meritorious defense. Therefore the Court affirmed the trial court's decision. View "LaFrance Architect v. Five Point Development South Burlington, LLC" on Justia Law

The parties were married in 1981. In 1998, husband retired from the United States Army after almost twenty-two years of service. About two years later, the parties were divorced in Vermont pursuant to a stipulated judgment. The judgment provided that husband’s military pension “shall be shared by the parties as a portion of their marital property” where, as pertinent to this case, Wife would receive 41.8% of husband’s total army pension as marital property. The DFAS thereafter garnished wife’s share of the pension and paid it directly to her. In 2009, eleven years after husband’s retirement and nine years after the parties’ divorce, he was recalled from retirement to serve as a military instructor in the ROTC program at the University of New Hampshire. He was discharged from the military in 2012, after three years in this position. During the three years of husband’s recall, his pension benefits were suspended so that neither he nor wife received any benefits. Husband’s additional service resulted in an increase in his monthly pension benefit. When contacted by husband, the DFAS indicated that it would continue to pay wife 41.8 percent of the benefit, as provided in the divorce judgment, resulting in an increase in the total amount of her payment. Husband then filed a motion to amend his support obligation, asserting that payment of the “straight percentage” provided in the divorce judgment would result in “over-payments” to wife. He proposed modified language that wife’s payment would to be calculated based on husband’s completed service at the time of the divorce. The trial court denied the husband's motion. Husband appealed, arguing: the trial court abused its discretion in: (1) denying the motion, and (2) failing to hold a hearing on the merits. The Supreme Court reversed. "[T]his is not a case where [. . .] the parties’ intentions about husband’s post-divorce service were “inescapably speculative,” as one might reasonably conclude in the more typical divorce situation involving the division of a spouse’s pension who was still employed at the time of the divorce." The case was remanded to afford the parties a hearing to address whether the modification sought by husband was absolutely necessary to “prevent hardship or injustice.” View "Spencer v. Spencer" on Justia Law

Mother appealed a trial court’s final divorce order. She asserted that the court erred in granting the parties a divorce because the statutory requirements for divorce were not satisfied. She also challenged the court’s award of primary legal and physical custody of the parties’ five children (including her son, but father’s stepchild) to father. Lastly, she argued that the court abused its discretion in its award of parent-child contact. Upon review of the trial court record, the Supreme Court affirmed the court’s order in all respects with the exception of its decision to award father primary parental rights and responsibilities in his stepchild. On this issue, the Court reversed and remanded for further proceedings. View "LeBlanc v. LeBlanc" on Justia Law

Vermont State Employees' Association (VSEA) appealed a Vermont Labor Relations Board decision which found that the State was not required to give certain compensation to state employees in the weeks and months following Tropical Storm Irene.The storm had a particularly devastating effect on the complex of state buildings in Waterbury. Governor Peter Shumlin authorized the complete closure of Vermont state government for one day. The closure notice stated that only authorized critical staff persons should report for work. In the days that followed, various work arrangements were necessary because the Waterbury complex was generally unusable. The Vermont Department of Human Resources indicated that agencies with offices in the complex had implemented their Continuity of Operations Plans (COOP). These plans allow only specifically authorized critical staff to work in order to continue an agency’s essential functions during and immediately following an emergency situation. All other employees in the complex were instructed that they "should not report to work unless specifically authorized to do so by a supervisor." Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations. At first, there was uncertainty about the work requirements and compensation for state employees who had worked in the complex. Over time, management reached a position on those policies. The position was unacceptable to VSEA, the union that represents the state’s classified employee workforce. VSEA charged that the State’s position was inconsistent with three collective bargaining agreements as well as a state personnel policy. When the parties could not resolve the conflict, VSEA appealed to the Vermont Labor Relations Board. VSEA contended that the Board erred in interpreting certain terms of the emergency closing provision of the collective bargaining agreements between the State and VSEA. Finding no reversible error, the Supreme Court affirmed. View "In re Grievance of VSEA" on Justia Law

Defendant Aidan Brunner appealed his conviction for possession of brass knuckles or a similar weapon with intent to use it. He argued arguing that the implement at issue is neither brass knuckles nor a similar weapon under State law. The weapon was described as having retractable blades. There was a slot that permitted the wielder to insert his or her fingers and hold the weapon. The concave curve of the metal fit against the palm; once grasped, one section is within the closed grip of the fist, and the remaining portions protrude along the front of the fingers/knuckles. The bar has sharp, serrated teeth. Finding that description fit the statutory definition of "brass knuckles" [or similar weapon], the Supreme Court affirmed. View "Vermont v. Brunner" on Justia Law

In Fall 2013, defendant pled guilty to a felony charge of lewd and lascivious conduct with a child as well as four counts of prohibited acts. The court ordered a pre-sentence investigation (PSI) and a psychosexual evaluation. Sentencing occurred after submission of the PSI report and the evaluation. In the course of the sentencing hearing, the defense sought testimony from the victim, who was thirteen years old at the time the offense conduct began and sixteen at the time of sentencing. The victim was defendant's younger sister. The defense requested that the judge speak privately with the victim. The State objected although it agreed "to allow the victim to express her preference to the Court outside the presence of counsel." Specifically, the record reflected that when the judge inquired if anyone "would object to my meeting briefly with [the victim] to find out exactly what her comfort level is," the State responded that it had no objection. The judge met with the child in chambers. A record was kept of their conversation. Reading from a prepared statement, the victim told the judge that she did not want her brother to go to jail. During the conversation, the judge discussed general sentencing principles with the victim. The trial judge offered the victim a mixture of advice and sympathy and discussed ways to overcome traumatic experiences in life. At the close of the conversation, the victim stated that she did not want to provide any additional testimony in open court. The court sentenced defendant to two-to-eight years, all suspended except ninety days on the lewd-and-lascivious conduct charge. The State petitioned for extraordinary relief, raising two issues concerning defendant’s sentencing: an objection to a private meeting in chambers between the judge and the minor victim of the offenses and the court’s decision to impose a "split" probationary sentence on the charge of lewd and lascivious conduct with a child, first offense. The Supreme Court found no violation of the sentencing provisions applicable to this offense. Accordingly, it denied the State's petition for extraordinary relief. View "Vermont v. Fontaine" on Justia Law

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