Plaintiff appealed the trial court's dismissal of his medical malpractice action for failing to satisfy the applicable statute of limitations. Plaintiff alleged that Defendant Allan Eisemann, M.D., practicing through a medical practice which bore his name, negligently failed to advise Plaintiff or his dentist of the known risks associated with a tooth extraction while Plaintiff was taking intervenous doses of a medication called "Zometa," prescribed for multiple myleoma. Defendant allegedly approved the procedure; Plaintiff's dentist pulled the tooth. Following the procedure, Plaintiff developed osteonecrosis of the jaw. All parties agreed that the statute of limitations period for Plaintiff's malpractice claims would expire October 9, 2009. By a letter dated in September, Plaintiff's counsel proposed to Dr. Eisemann's counsel and other potential defendants a "time out" agreement to toll the statute of limitations for ninety days so that the parties could pursue settlement. Although Dr. Eisemann signed off on the agreement, not all defendants did. As a result of Plaintiff's failure to reach an agreement with all defendants, Plaintiff filed suit on October 7, 2009. Counsel for Dr. Eisemann returned the acceptance of service to Plaintiff's counsel in January, 2010. Plaintiff did not filed the acceptance with the court at that time. The trial court dismissed the case on its own motion on April 15, 2011 based on Plaintiff's failure to prosecute his claim. Three days later, Plaintiff filed the signed acceptances of service. Dr. Eisemann moved to dismiss. On appeal, Plaintiff argued that the Eisemann defendants are equitably estopped from invoking the statute of limitations. Upon review, the Supreme Court concluded that Plaintiff could not rely on the doctrine of equitable estoppel because his own "omissions or inadvertences" contributed to the problem. Accordingly, the Court affirmed dismissal of his case. View "Beebe v. Eisemann" on Justia Law

Plaintiff Frank Hall, a longtime employee of the Agency of Transportation (AOT), sued the agency in 2007, alleging discrimination on the basis of a physical disability and retaliation for his having filed a workers' compensation claim. The jury found no disability discrimination, but awarded Plaintiff damages based upon its finding that the State had retaliated against him as alleged. On appeal, the State argued that: (1) Plaintiff's retaliation claim was precluded by a September 2003 Stipulation and Agreement signed by Plaintiff and AOT releasing the State from liability for any and all claims associated in any way with Plaintiff's reclassification and transfer stemming from hostile work environment allegations against him; (2) Plaintiff's retaliation claim was not supported by any causal connection linking his employment reclassification and transfer with his having filed a workers' compensation claim; (3) evidence of a video surveillance of Plaintiff connected with a second workers' compensation claim was insufficient as a matter of law to support his retaliation claim and the resulting damages award; and (4) even if the record supported his retaliation claim, the State's liability is limited to $250,000, as set forth in Vermont's Tort Claims Act during the relevant time period. Plaintiff cross-appealed, challenging the trial court's denial of his request for post-judgment interest and attorney's fees. Upon review, the Supreme Court vacated the judgment against the State and remanded the matter for the trial court to rule on the potentially determinative issue of the scope of the September 2003 release. View "Hall v. Vermont" on Justia Law

Defendant Jason Mead was convicted of attempted second-degree murder following a jury trial. He appealed that conviction on four grounds: (1) a State’s witness and a juror had improper contact during trial; (2) the trial court admitted excerpts of defendant’s testimony at a relief-from-abuse (RFA) hearing at which defendant was not represented by counsel; (3) the trial court admitted evidence of prior bad acts of defendant; and (4) the jury charge did not require the jury to identify which gunshot supported its conviction. Finding no abuse of the trial court's discretion, the Supreme Court affirmed Defendant's conviction. View "Vermont v. Mead" on Justia Law

Pro se defendant James Burke appealed his sexual assault conviction under 13 V.S.A. 3252(a)(1) and resulting eighteen-to-twenty-year sentence. Defendant contended that: (1) he was denied a speedy trial; (2) the trial court abused its discretion by excluding evidence that complainant made false accusations of sexual assault in the past; (3) the court erred by refusing to allow him to present evidence of complainant’s past convictions; (4) the court erred by denying his motion to proceed pro se and by ordering him shackled in court; (5) the court improperly imposed a fixed term of imprisonment; and (6) the court should have granted his motion for a new trial. Finding no abuse of the trial court's discretion and sufficient evidence in the record support the jury's verdict and the trial court's decisions, the Supreme Court affirmed Defendant's conviction. View "Vermont v. Burke" on Justia Law

Barrett Holby, Grethe Holby, Kristin Holby, and Wegard Holby appealed orders of the Public Service Board which granted New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) a Certificate of Public Good (CPG) authorizing the installation of a monopine telecommunications tower and associated facilities in Weston, and denying the Holbys' motion to alter the CPG order. The Holbys' properties either abut the property on which the proposed project is to be built, or are in close proximity to it. The Holbys' appeal was grounded on their claims that they were denied procedural due process in connection with the Board proceeding. Upon review, the Supreme Court held that the Holbys did not have constitutionally protected interests at stake, and therefore affirmed the Public Service Board's decision. View "In re Petition of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility" on Justia Law

Plaintiffs Vermont Human Rights Commission (HRC) and Ursula Stanley, an employee of the State Agency of Transportation, appealed the Washington Civil Division's decision to grant the State's motion to dismiss her complaint for failure to state a claim upon which relief can be granted. Ms. Stanley complained that, under the Vermont Parental and Family Leave Act (VPFLA), 21 V.S.A. 472(c), which requires continuation of certain "employment benefits" during family leave, she was entitled to accrue, but was denied, paid vacation and sick time during the course of an unpaid parental leave. The trial court held that under section 472(c) an employee does not continue earning paid leave during unpaid parental leave. Upon review, the Supreme Court affirmed the trial court's decision to dismiss, finding that sections 472(a) and (b) of the VPFLA point to why the accrual of paid time-off and sick time are not benefits that employers must provide during unpaid leave. Section 472(a) states that an employee is "entitled to take unpaid leave." However, the statute permits employees to use already "accrued paid leave," such as vacation or sick leave, during parental leave. As the trial court noted, if an employee could demand accrual of paid leave from an employer under the VPFLA while on family leave, it must follow that at least a portion of the parental leave would be rendered paid leave, "a result not just inconsistent with, but contrary to, the employer's VPFLA obligation to provide unpaid parental leave only." View "Vermont Human Rights Commission v. Vermont" on Justia Law

Defendant Eddie Sinclair filed a petition for a writ of coram nobis in the criminal division, seeking to vacate a conviction from 1993 on the ground that his plea was not entered voluntarily. The court denied the motion, concluding there was no basis for a collateral attack on Defendant's plea. Defendant appealed, arguing his plea should be vacated because the sentencing court did not substantially comply with Vermont Rule of Criminal Procedure 11. In October 1992, the State charged Defendant with assault and robbery. Defendant entered a plea agreement with the State in which he agreed to plead guilty in exchange for a sentence of two-to-twelve years. In March 1993, the trial court held a change-of-plea hearing and engaged Defendant in plea colloquy. The court then accepted the plea and subsequently sentenced Defendant in accordance with the agreement. In November 2010, long after his sentence had been served, Defendant filed a pro se motion in the criminal division "pursuant to coram nobis" to "vacate/bring to trial/set aside" his 1993 conviction. Defendant claimed the plea was entered involuntarily because he was not told that the plea could be used to enhance a future sentence and he was under the influence of narcotics at that time. The motion alleged that he was currently serving a federal sentence that was enhanced based on his 1993 Vermont conviction. In a written order, the court denied the motion, ruling that Defendant had failed to demonstrate the plea colloquy was inadequate and that there was no basis for a collateral attack on the plea. The State contended that Defendant's petition was improperly brought in the criminal division because Defendant may not avail himself of coram nobis when postconviction relief (PCR) proceedings are available to him, and that they were available in this case. Thus, the State argued that the petition should be dismissed without reaching the merits of Defendant's arguments. Upon review, the Supreme Court agreed with the State and concluded that Defendant was eligible to file a PCR petition and thus precluded from seeking relief through coram nobis. Accordingly, the Court affirmed the criminal division's denial of Defendant's motion. View "Vermont v. Sinclair" on Justia Law

Defendant Vaillancourt Tree and Landscape Service appealed a trial court decision denying its post-trial motion for attorney's fees and costs under a theory of implied indemnification.  The issue on appeal was whether indemnity for attorney's fees is appropriate where a jury has found the putative indemnitor not liable in the underlying suit. Plaintiff Leonard Knappmiller owns a commercial property directly abutting a property owned by Defendants Joseph and Carolyn Bove.  This case grew from a dispute between Knappmiller and the Boves regarding the Boves' decision to cut down and remove a row of white cedar trees that allegedly straddled their property line.  The Boves hired Vaillancourt to cut and remove the trees.  Following the removal, Knappmiller filed a claim against the Boves for wrongful cutting of trees, alleging that the trees were located on Knappmiller's property and were removed without his consent.  Knappmiller later amended his complaint, adding Vaillancourt as a codefendant.  Vaillancourt consequently cross-claimed against the Boves for negligence, breach of contract, and indemnity.  Vaillancourt's cross-claim alleged that it had entered into a contract with the Boves, and that the Boves did not, but should have, informed Vaillancourt about tree ownership issues with Knappmiller before the trees were cut down and removed.  Vaillancourt's cross-claim demanded "judgment against the Boves . . . for indemnity, if Vaillancourt is found liable to Plaintiff and for any other damages suffered by Vaillancourt resulting from the Boves' negligence and breach of contract." Upon review, the Supreme Court affirmed the trial court: "[e]ven if [the Court] were to dispense with a requirement of finding fault on behalf of the Boves, the jury specifically found neither the Boves nor Vaillancourt liable for any wrongful act.  The jury did not reach Vaillancourt's cross-claim against the Boves because Vaillancourt requested attorney's fees only if Vaillancourt was found liable in the underlying suit.  More importantly, Vaillancourt did not object to the jury charge or the special verdict form -- both of which unequivocally instructed the jury to reach Vaillancourt's indemnity claim only if Knappmiller prevailed.  [The Court] therefore cannot discern any support for an award of attorney's fees, other than Vaillancourt's conclusory allegations that the Boves knew the trees straddled the boundary line and had a duty to inform Vaillancourt of that fact." View "Knappmiller v. Bove" on Justia Law

Defendant Robert Kolibas was convicted by a jury of lewd and lascivious conduct with a child and two counts of aggravated assault. On appeal of his conviction, Defendant claimed the trial court in its instructions to the jury eliminated the element of intent from the State's burden of proving the aggravated assault charges. Defendant is the father of twelve-year-old A.K., who invited her thirteen-year-old friend, T.F., to a sleep-over. That evening, Defendant made smoothies for the two girls, his wife, and himself. At trial, Defendant testified that he placed one Ambien (a sleep aid) and half of a Valium (an anti-anxiety medication) into his wife's drink because she was "stressed out" and he "didn't want her bothering [him]." Defendant's wife testified that after Defendant left the kitchen to bring two smoothies to the girls, she poured her part of her drink into Defendant's cup. The girls drank the smoothies as they lay on a futon in A.K.'s bedroom and watched a movie. She soon felt dizzy and tired, and fell asleep in about thirty minutes. T.F. fell asleep and woke to Defendant touching her chest and genitals. The court instructed the jury that "[t]he State is not required to prove, but may prove, that the Defendant intended that a specific person be harmed in this [drugging] manner." Defendant admitted at trial he deliberately gave "stupefying drugs" to his wife. With the court's instruction, the Supreme Court concluded it was virtually assured the jury would find Defendant guilty of aggravated assault. "This is constitutional error: [b]ecause the State built its case around the theory that Defendant intended to drug the girls, Defendant built his defense on the theory of mistake. . . . However, after Defendant testified, the court decided that the State did not have to prove that he intended to drug a particular person, and that Defendant would not be permitted to argue to the jury a defense of mistake. As a result, the jury could have found Defendant guilty of aggravated assault against T.F. and A.K. if they did not believe he actually intended to drug them." Defendant's ability to defend against the specific charges brought by the State was so substantially prejudiced that the Court ordered a new trial. Because Defendant did not challenge his conviction for lewd and lascivious conduct, the Court did not disturb that conviction. View "Vermont v. Kolibas" on Justia Law

Appellants Warren and Wynne Kirschbaum appealed a trial court's ruling in favor of Appellee First Quality Carpets, Inc. arising from a dispute they had over carpet installed in 2007. The Kirschbaums argued that the civil division erred in awarding First Quality attorney's fees under 9 V.S.A. 4007(c) of the Prompt Pay Act because that section of the statute authorizing attorney's fees recovery effectively expired in 1996 pursuant to a sunset provision included in the Act. Alternatively, the Kirschbaums argued that because they withheld payment to First Quality in good faith, they were entitled to a directed verdict and that First Quality should not have been awarded attorney's fees under 4007(c). Finally, the Kirschbaums argued that the court erred in denying their counterclaim under the Consumer Fraud Act. Upon review, the Supreme Court affirmed the trial court in all respects. View "First Quality Carpets, Inc. v. Kirschbaum" on Justia Law