Appellant Joanne Fitzsimmons Balkam appealed the superior court's partial summary judgment decision that reversed a probate court decision that had granted her permission, as executor of her mother's estate, to physically partition and sell parts of a real estate property to make a division between the heirs of her mother's residual estate. The appellees were two of her brothers, Dennis and James Fitzsimmons. The issues raised in executor's appeal were whether the probate court had the power to allow the heirs to choose which property they received and whether the executor had the power to contract for a survey. Dennis and James raised five issues on appeal: the first two contested the probate court's ruling on their claim of waste and their claim that the accounting was flawed; the last three addressed the power of the executor and the probate court with respect to the distribution of the property: (1) whether executor had the power to subdivide the estate, (2) whether executor's proposed division met the requirement of the will that the estate be distributed into "as nearly equal shares as possible", and (3) whether the probate court's division was proper under its power to partition in 14 V.S.A. 1729. The superior court, in granting appellees' motion for partial summary judgment, and denying the motion for the license to sell real estate, disagreed with the probate court, and found that because legal title to real property passes to beneficiaries immediately upon the death of a testator, the executor had "limited ability to affect the beneficiaries' ownership of the real property" and could not partition the property. Whether or not by mistake, however, the Supreme Court concluded the superior court did not take up all the issues before it. Dennis and James filed a motion to reconsider the remand to the probate court, asking the superior court to deal with the remaining issues. Executor did not respond to that motion, but instead filed a notice of appeal to the Supreme Court requesting that it reverse the superior court's summary judgment order regarding executor's power to partition the property. While the Supreme Court held that the executor has the power to partition or sell the property to distribute to testator's children, it did not suggest that the power was unlimited. "The executor is bound by the requirement that the distribution shares be as equal as possible." The Court found the superior court erred in its reasoning on whether the executor had the power to subdivide. On remand, the Supreme Court mandated the trial court must move on to the fourth and fifth questions in light of executor's action pursuant to her distribution power. It must also answer the first and second questions. View "In re Estate of Fitzsimmons" on Justia Law

Plaintiff, a Vermont resident and voter, filed a complaint seeking declarations that Barack Obama is not a "natural born Citizen" as required for eligibility to be President in Article II, Clause 4, of the Federal Constitution and was thus unqualified to be on the ballot for the Office of President, and that Mr. Obama's Petition for Nomination for the primary election and filings for the general election were "null and void" because of his ineligibility to hold office. In addition, plaintiff sought an injunction against the Vermont Secretary of State to bar the Secretary from including Mr. Obama's name on the election ballot in Vermont. Defendants filed a motion to dismiss plaintiff's complaint pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6). The trial court granted defendants' motion to dismiss, ruling that plaintiff lacked standing to bring the suit because the claim was "an impermissible generalized grievance." Plaintiff filed a timely notice of appeal, and subsequently filed a motion in late 2012 for an expedited hearing before this Court in advance of the Joint Session of Congress that would take place on January 6. This Vermont Supreme Court denied the motion. Plaintiff argued this case was not moot because the Court could provide relief by declaring that Barack Obama was not a natural-born citizen, and asserted that a controversy continues through plaintiff's efforts to safeguard his life, liberty and property. The Vermont Court held this case was moot. View "Paige v. Vermont" on Justia Law

Plaintiff Michelle Straw appealed a superior court judgment that dismissed her case for breach of an implied employment contract against defendant Visiting Nurse Association and Hospice of Vermont and New Hampshire (VNA). She argued the jury instructions in her case were erroneous and prejudicial because they failed to instruct on the standard for "just cause" termination. Finding no error, the Supreme Court affirmed. View "Straw v. Visiting Nurse Association and Hospice of VT/NH" on Justia Law

Defendant appealed a superior court order that denied his motion to dismiss a two-count information alleging kidnapping and aggravated domestic assault. Defendant contended on appeal that the Orleans County State's Attorney who filed the information was invalidly appointed, and that his prosecutions were therefore unlawful and violated due process. The trial court disagreed, concluding the appointment was consistent with the Vermont Constitution and statute; and that, even if the appointment was infirm, the de facto officer doctrine validated the State's attorney authority to prosecute. The Supreme Court concluded the State's attorney was acting as a de facto officer and affirmed. View "Vermont v. Cuomo" on Justia Law

Defendant Joseph Kenvin appealed the sentence he received upon reconsideration by the superior court, which reduced the time to serve on his conviction for careless and negligent driving from eleven-to-twelve months to nine-to-twelve months. Defendant contended the trial court erred: (1) by finding him "very negligent" in causing the death of a collision victim, despite the jury's acquittal on the underlying charge of grossly negligent operation, death resulting; and (2) by ruling that defendant was not entitled to credit for time served while on restrictive conditions of pretrial release. Upon review of the superior court record, the Supreme Court affirmed defendant's sentence but remanded the case back to the trial court to provide credit to defendant for the period between March 10, 2010 and March 22, 2010 during which defendant was subject to a twenty-four hour curfew. View "Vermont v. Kenvin" on Justia Law

Defendant appealed his jury conviction for negligent operation of a motor vehicle and the sentence he received. He contended the trial court impermissibly allowed the State's crash reconstruction expert to testify about defendant's speed at the time of the collision. Defendant also contended that, at sentencing, the trial court erred in considering the death that resulted from the accident as a factor in sentencing. Finding no error, the Supreme Court affirmed defendant's conviction and sentence. View "Vermont v. Scott" on Justia Law

The City of Rutland appealed a trial court's order, on remand, directing it to disclose certain records under the Vermont Public Records Act. The records concerned several Rutland Police Department employees who were investigated and disciplined for viewing and sending pornography on work computers while on duty. The City argued on appeal that the trial court erred in evaluating the privacy interests at stake and concluding that the "personal records" exemption did not apply. Finding no abuse of discretion, the Supreme Court affirmed. View "Rutland Herald v. City of Rutland " on Justia Law

Plaintiff Daniel Inman appealed a superior court judgment granting the State of Vermont's motion to dismiss for lack of subject matter jurisdiction and denying judicial review of the Department of Corrections (DOC)'s decision to terminate his participation in the Incarcerative Domestic Abuse Treatment Program (InDAP). Plaintiff was serving a twenty-six-month to eight-year sentence for aggravated assault and escape. Plaintiff began participating in the InDAP program in December 2010, and continued to participate even after he had finished the minimum one-year program requirement. As his anticipated release date approached, plaintiff sought a telephone hearing in the superior court to seek visitation with his children upon his release. The Superior Court held such a hearing. According to plaintiff, he was polite and well-behaved throughout the hearing, despite multiple interruptions from his wife, who was the complainant in his domestic assault case. Upon conclusion of the hearing, plaintiff's caseworker informed his InDAP coordinator that plaintiff had asked his wife several times to "be quiet so I can tell my side of the story" and accused her of lying. Plaintiff vehemently contested this characterization of his behavior during the telephone hearing, claiming that the transcript "altogether refuted" the caseworker's representation. InDAP staff placed plaintiff on 90-day probation from the InDAP program and gave him specific requirements to return to good standing. InDAP staff also suspended his phone privileges. Six days later, plaintiff was terminated from the InDAP program. The termination notice indicated that plaintiff "continuously justifies abuse towards his partner and blames others for his actions," he "is just going through the motions to get through the program," and he had "another person call his victim of record after being placed on probation for abuse towards her during the court call." Plaintiff unsuccessfully appealed the termination within the DOC. Plaintiff subsequently appealed the termination of his participation in InDAP to the superior court, claiming that the decision was appealable under Vermont Rule of Civil Procedure 75 and that his termination was grounded in false accusations. The State filed a motion to dismiss, alleging that the court lacked subject matter jurisdiction over this case, which was granted. The Supreme Court found no abuse of discretion and affirmed the superior court's decision. View "Inman v. Pallito" on Justia Law

In 2005, petitioner lived with his girlfriend (witness) and their two young children. Their infant daughter was hospitalized for symptoms and injuries consistent with head trauma. A year later, petitioner was charged with two counts of first-degree aggravated domestic assault for allegedly causing the child's injuries. Petitioner appealed the superior court's order granting summary judgment to the State and dismissing his petition for post-conviction relief (PCR). Petitioner was assigned counsel; trial was scheduled for February 2007. As a defense strategy, counsel wanted to highlight that other people had access to the child and could have injured her. In particular, counsel contemplated that if the witness claimed her Fifth Amendment privilege against self-incrimination when called to testify at trial, the jury might infer that she was involved in the crime and therefore reasonably doubt petitioner's participation. Counsel's affidavit acknowledges that the strategy was his idea, stating that it "came to [him]" during a meeting with witness and petitioner. Petitioner's counsel discussed the strategy at that meeting with both the witness and petitioner. Petitioner's counsel also advised witness to discuss the proposed tactic with her own counsel. The witness did consult with an attorney and ultimately decided not to claim her Fifth Amendment privilege at trial. Instead, she testified as a prosecution witness that petitioner had encouraged her to invoke the Fifth Amendment when testifying. Petitioner's counsel objected to this testimony based on attorney-client privilege. After his objection was denied, Petitioner's counsel failed to address the matter on cross-examination or in his closing argument. On appeal to the Supreme Court, Petitioner argued that the PCR court disregarded material disputed facts on his claim of ineffective assistance of counsel and prematurely concluded that, as a matter of law, counsel's performance was professionally reasonable and did not prejudice the outcome of petitioner's trial. After careful consideration, the Supreme Court found that the trial court record was inadequate to determine on summary judgment whether counsel reasonably anticipated the consequences of suggesting the risky defense strategy, including sufficiently informing petitioner about its risks; and, if he did not, whether petitioner's defense was therefore prejudiced. The Court reversed the PCR court's grant of summary judgment to the State and remanded for an evidentiary hearing. View "In re Lowry" on Justia Law

Petitioner Edwin Towne appealed the trial court's denial of his request for post-conviction DNA testing under Vermont's Innocence Protection Act. Upon review, the Supreme Court affirmed the denial because the court correctly concluded that the results of the requested test would not have created a "reasonable probability" of a different outcome at trial. View "In re Towne" on Justia Law