Defendant appealed the superior court's denial of his motion to modify his sentence. He contended the court erred in failing to award credit for time served. Upon review of the matter, the Supreme Court reversed the superior court's decision and granted defendant credit against the controlling burglary sentence for the time he spent in jail between arrest and sentencing on the later charges. View "Vermont v. LeClair" on Justia Law

Defendants appealed their convictions for unlawful trespass. Green Mountain Power Corporation (GMP) is an electric utility that operates several wind-power sites throughout Vermont. Construction required cutting trees, excavating, and blasting rock to produce a "crane road" on which the turbines could be erected by crane. Because a portion of the crane road would be within 100 feet of the GMP's leased property's boundary line, some blast safety zones actually extended into neighboring land owned by Donald and Shirley Nelson, who strongly opposed the project. The Nelsons allowed a group to protest the wind-power site by setting up camp on the portion of the Nelsons' land that fell within a blast safety zone. This prompted GMP and its blasting subcontractor to increase their safety measures, risking a delay of construction of more than five weeks and threatening GMP's eligibility for the federal tax credits. In Fall 2011, GMP initiated a civil suit against the Nelsons for nuisance and interference with contract. While the suit was pending, Defendants passed through an existing property line and entered a portion of the crane-road construction site located on land disputed by the Nelsons and GMP. GMP halted construction, and a representative asked defendants to leave. Although aware of the boundary dispute, defendants refused to leave, claiming permission from the Nelsons, who they maintained owned the disputed land. GMP then contacted local police, who arrived at the scene and asked defendants to leave. Defendants again refused and were arrested. Upon review, the Supreme Court concluded that the trial court did not abuse its discretion by not dismissing the case in the interests of justice. View "Vermont v. Gillard" on Justia Law

The complainant in this case and defendant Tyler Waters lived together for several years and have a minor child together. After they broke up, complainant got a relief-from-abuse (RFA) order against defendant. A 2009 modification of the final RFA order was based on findings that defendant had abused complainant, there was a danger of further abuse, and defendant represented a credible threat to complainant’s safety. The order prohibited defendant from, among other things, abusing, threatening, stalking, or harassing complainant. It prohibited defendant from communicating or attempting to communicate directly or indirectly with complainant, except that it specifically stated, "[d]efendant may have contact by telephone only." Complainant reported to the police that due to the volume of communications from defendant she felt "harassed, bullied, and made to feel guilty." The State charged defendant with violating the RFA order. Specifically, the State alleged that defendant had violated the prohibition against harassing complainant. The ultimate issue before the Supreme Court in this case was whether it was plain error for the trial court to instruct a jury that it could convict defendant for violating an abuse-prevention order prohibiting him from harassing petitioner if it concluded that he engaged in conduct that would cause a reasonable person to be "annoyed, irritated, tormented or alarmed." The Supreme Court concluded that the instruction was plain error, and that the evidence presented at trial could not support a conviction for violating the abuse-prevention order, as worded. View "Vermont v. Waters" on Justia Law

Plaintiff Janet Knutsen appealed a superior court decision to deny her motion for summary judgment and and for granting defendant Vermont Association of Realtors, Inc.'s (VAR) motion for summary judgment on her consumer fraud claim arising out of her purchase of a home in Moretown. Plaintiff argued that VAR's form purchase and sale agreement, which was used in her real estate purchase (to which VAR was not a party) violated the Vermont Consumer Fraud Act (CFA) in that two provisions of the form were unfair and deceptive, and that she was therefore entitled to damages under section 2461(b) of the CFA. Upon review of the facts of this case, the Supreme Court concluded that the trial court correctly held that 'VAR's sole connection to this case was its drafting of the template clauses that [plaintiff] and her buyer's broker used for the purchase of the house, and that could not support a consumer fraud claim. View "Knutsen v. Dion" on Justia Law

Father appealed the family court’s denial of his motion to modify a final order terminating his parental rights to his children, A.W. and J.W., born in November 2000 and October 2006, respectively. On appeal, he argued that there were changed circumstances sufficient to modify or set aside the termination decision and that the court’s basis for denial in this case lacked evidentiary support. Finding no abuse of discretion by the family court, the Supreme Court affirmed. View "In re A.W. and J.W." on Justia Law

The issue before the court in this case arose from a proposed housing development in West Woodstock. In a prior case involving this development, the Supreme Court affirmed permits for the project granted by the town development review board and the district environmental commission and affirmed by the environmental division of the superior court. In this appeal, brought by the owners of abutting properties to the land in question, more narrow questions related to easements and other property rights were brought before the court. After review of the trial court record and the arguments presented by the parties, the Supreme Court affirmed in part and reversed in part. View "Roy v. Woodstock Community Trust, Inc." on Justia Law

Taxpayer Brownington Center Church of Brownington, Vermont (now known as New Hope Bible Church and Ministries, Inc.) (the Church)), appealed a Superior Court determination that certain land and buildings owned by the Church were not exempt from real estate taxes for the tax year commencing April 1, 2009 under 32 V.S.A. 3832(2). The parties did not dispute that the property was dedicated for pious use and that it is owned and operated by the Church as a nonprofit organization. The issue was whether the property was excluded from the pious-use exemption of section 3802(4) by the language in section 3832(2). The Church argued that the property qualified for exemption, primarily because everything that occurred on the property facilitated its religious ministry and that “worship and service of the Believer in Christ” takes place everywhere on the premises. Under this belief, the Church maintains that the steel equipment building, the cabins, kitchen and the tent, are all church edifices. It defines “church edifice” to be a “structure or facility that is used exclusively or primarily to propagate a religious message to persons who receive that message for a worshipful purpose.” It contended that an overnight summer camp for religious purposes transformed the entire property into a place of worship and education. The Supreme Court disagreed and affirmed the Superior Court. View "Brownington Center Church v. Town of Irasburg" on Justia Law

Respondent Leslie Anne Whittington appealed an Office of Professional Regulation (OPR) order that concluded she committed several acts of unprofessional conduct and sanctioning her to a five-year license suspension. Respondent worked as a Nursing Home Administrator (NHA) from October 2006 until 2010. In its Amended Specification of Charges, the State alleged that respondent committed a host of specified acts that amounted to unprofessional conduct. In particular, the State alleged that respondent engaged in unprofessional conduct by failing to keep the home’s supplies adequately stocked; failing to keep the home adequately staffed; creating an erratic and hostile environment for staff and residents, possibly due to mental or psychological instability; allowing regulatory deficiencies to occur and responding poorly to two routine regulatory by the Vermont Division of Licensing and Protection; failing to ensure that residents’ records were properly kept; improperly interfering with nurses’ delivery of medication to residents and other nursing duties or medical decisions; falsely representing that she was a licensed nursing assistant and was close to earning a nursing degree; and improperly physically removing the ombudsman responsible for the home from the premises. Upon review of the OPR record, the Supreme Court reversed the Administrative Law Officer’s determinations that respondent engaged in unprofessional conduct by questioning a doctor’s withdrawal of life-sustaining treatment and on account of the Division of Licensing and Protection survey deficiencies, but affirmed the ALO’s other findings of unprofessional conduct. The case was remanded to the trial court for remand to the ALO for redetermination of the applicable sanction. View "Whittington v. Office of Professional Regulation" on Justia Law

Plaintiffs Peter and Nicole Dernier appealed the dismissal of their action for: (1) a declaratory judgment that defendant U.S. Bank National Association could not enforce the mortgage and promissory note for the debt associated with plaintiffs' purchase of their house based on irregularities and fraud in the transfer of both instruments; (2) a declaration that U.S. Bank has violated Vermont's Consumer Fraud Act (CFA) by asserting its right to enforce the mortgage and note; and (3) attorney's fees and costs under the CFA. They also appealed the trial court's failure to enter a default judgment against defendant Mortgage Electronic Registration Systems, Inc. (MERS). Plaintiffs fell behind on their mortgage, and brought suit against two parties: Mortgage Network, Inc. (MNI), which is in the chain of title for both the note and the mortgage, and MERS, which is in the chain of title for the mortgage as a "nominee" for MNI. Plaintiffs sought a declaratory judgment that the mortgage was void, asserting that: (1) MERS, as a nominee, never had any beneficial interest in the mortgage; (2) MNI had assigned its interest in both instruments to others without notifying plaintiffs; and (3) no party with the right to foreclose the mortgage had recorded its interest. MNI responded that plaintiffs had named MNI as a party in error, because MNI did "not own the right to the mortgage in question." MERS did not respond. Around this time, plaintiffs received a letter in which U.S. Bank represented that it possessed the original promissory note and mortgage and that it had the right to institute foreclosure proceedings on the property. The trial court denied plaintiffs' motion to amend and dismissed plaintiffs' case for failure to state a claim. Plaintiffs appealed. After careful consideration of the trial court record, the Supreme Court concluded the trial court erred in dismissing Counts 1 and 2 of plaintiffs' amended complaint for lack of standing, to the extent that these counts alleged irregularities in the transfer of the note and mortgage unconnected to the pooling and servicing agreement. The Court affirmed as to dismissal of Counts 3 and 4 of plaintiffs' proposed amended complaint. The case was remanded for further proceedings. View "Dernier v. Mortgage Network, Inc." on Justia Law

Applicant Charles Ferrera and property owners Ronald and Susan Fenn appealed a Superior Court, Environmental Division order that affirmed the Town of Middlebury's denial of their application to operate a gravel pit. Applicants contended: (1) several key findings and conclusions were unsupported by the evidence; and (2) provisions of the Town's zoning regulations are unconstitutionally vague. Finding no error, the Supreme Court affirmed. View "In re Ferrera & Fenn Gravel Pit" on Justia Law