Plaintiff Alpine Haven Property Owners' Association, Inc. (AHPOA) appealed a trial court's decision in its collection action against defendant-homeowners Harry and Lynette Brewin. In awarding judgment to AHPOA, the court calculated what it considered a reasonable annual fee that AHPOA could charge defendants for services it provided, including garbage pickup and road maintenance. The Vermont Supreme Court concluded the court erred in replacing AHPOA's fee with its own given the absence of any evidence to show that AHPOA acted in bad faith or that its fee was unreasonable. Therefore, the Court reversed the trial court's decision and remanded for further proceedings. View "Alpine Haven Property Owners Assn., Inc. v. Brewin" on Justia Law

The Firing Range Neighborhood Group, LLC (Neighborhood Group) appealed an environmental court decision declining to find Act 250 jurisdiction over a firing range operated by the Laberge family (Laberge). Neighborhood Group argued the environmental court erred by: (1) allowing Laberge's untimely appeal; (2) concluding that because Laberge did not rely on donations, it was not operating for a commercial purpose; and (3) granting preclusive effect to a 1995 jurisdictional opinion. The Laberge family owned and operated a 287-acre farm, of which ten acres have been used as a shooting range since the 1950s by Laberge and the public. In November 2015, the recently formed Neighborhood Group requested a new jurisdictional opinion from the Commission. Neighborhood Group argued that since 1995, the range had begun operating with a "commercial purpose," citing the continued acceptance of donations and 2012 berm placements and bench repairs. Members complained of a sharp increase in the volume, intensity, and hours of shooting noise over the years since. In February 2016, the Commission issued a jurisdictional opinion (2016 JO), finding that, due to regular donations from municipalities, the range was now operating for a commercial purpose such that the construction of berms and shooting benches subjected the range to Act 250 jurisdiction. The environmental court declined to impose Act 250 jurisdiction, finding that Neighborhood Group had "fail[ed] to meet its burden of proof showing that cash donations are necessary for the [r]ange to operate" or that "there has been a change in donations to the [r]ange since the 1995 JO was issued that would create a commercial purpose where none existed before." The Vermont Supreme Court determined the environmental court did not abuse its discretion in finding excusable neglect and allowing Laberge's untimely appeal. Neither did it err when it concluded that Laberge, which had never charged for the use of the range and did not rely on donations for its operation, was not operating for a commercial purpose within the meaning of Act 250. "Laberge's range, consisting of a farm field with several benches and earthen berms, is not operating for a commercial purpose any more than a backyard corn maze or community garden space offered to the public free of charge. Act 250 sought to protect Vermont's unique environmental and cultural heritage at a time when the rapid proliferation of large-scale developments was dramatically altering many landscapes and communities around the nation. The text and spirit of Act 250, consistent with our prior decisions, informs our conclusion that the Act was not intended to apply to a family dairy farm that allows the community to target practice on its fields free of charge." View "In re Laberge Shooting Range (Firing Range Neighborhood Group, LLC, Appellant)" on Justia Law

Richard Joyce appealed the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) regarding Joyce's compliance with professional surveying standards. OPR opened an investigation into the complaint and, after review ultimately dismissed the complaint. Months later, OPR sent Joyce a letter stating that "[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration." OPR did not disclose the nature or origin of the new evidence. OPR sent Joyce a letter notifying him that "[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against [his surveying] license." A hearing on the charges was held in June 2017; OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce's right to file an appeal with an OPR appellate officer within thirty days of the entry of the order. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost. In his filing, Joyce's attorney reiterated that the appeal presented two legal issues, both raised in the attorney's notice of appeal, and that a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief. The Vermont Supreme Court found that because Joyce provided the appellate officer with neither a statement of questions nor a transcript, per OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below. The appellate officer correctly considered the factors relevant to the decision not to review Joyce's filings in a summary manner and to dismiss Joyce's appeal, specifically, the procedural irregularities in the appeal that essentially foreclosed appellate review. View "In re Richard H. Joyce" on Justia Law

The State appealed a trial court's grant of defendant Ronald Dupuis's motion to suppress evidence arising from a game warden's warrantless search of his property, arguing that because defendant's "no trespass" postings did not comport with Vermont's hunting posting statute, he enjoyed no expectation of privacy. Defendant was charged with taking big game by illegal means as well as baiting and feeding deer. Although the warden testified that he saw no signs posted, defendant and others testified, and the trial court found, that defendant had posted between twenty-five and thirty signs stating "no trespassing" or "keep out" around the perimeter of his property, located approximately 100 to 150 feet apart. A gate with multiple "no trespassing" signs blocked the main entrance onto defendant's property. There was no evidence that the game warden had a warrant or suspicion of criminal activity at the time he entered defendant's land. The trial court granted defendant's motion to suppress evidence obtained from the warden's warrantless search, ruling that it violated Chapter I, Article 11 of the Vermont Constitution. The court held that by posting his land to the extent that he had, defendant "took the steps necessary to clearly communicate to the reasonable person that the public was excluded from his Bloomfield property," thereby preserving his expectation of privacy. Finding no reversible error in the trial court's judgment, the Vermont Supreme Court affirmed. View "Vermont v. Dupuis" on Justia Law

At issue before the Vermont Supreme Court in this case centered on whether defendant Stuart Lizotte’s Fourth Amendment rights were violated when his online service provider, AOL, searched his transmissions, detected suspected child pornography, and sent information to the National Center for Missing and Exploited Children (NCMEC), which opened the email and attachment and provided it to law enforcement. The Supreme Court concluded AOL was not acting as an agent of law enforcement when it searched defendant’s transmissions, and that NCMEC and law enforcement did not expand AOL’s private search by viewing the file already identified by AOL as containing child pornography. In addition, any expansion of the search by opening the related email did not invalidate the warrant because the other information in the affidavit independently provided probable cause to search. View "Vermont v. Lizotte" on Justia Law

Defendants Barry Feldman, the New England Expedition-Colchester, LCC (NEE-Colchester), and Colchester Managing Member, LLC (CMM), petitioned the Vermont Supreme Court to strike jury-awarded punitive damages and find that the trial court erred in numerous evidentiary rulings, in denying defendants’ motion for judgment as a matter of law, and in denying defendants’ motion for a new trial. This appeal concerned a commercial dispute over the proceeds from a 2012 sale of a grocery store between plaintiffs Eugene Beaudoin, the New England Expedition Limited Partnership II (NEELP-II), and the New England Expedition Limited Partnership IV (NEELPIV), and defendants. Prior to the transaction at issue, Feldman and Beaudoin had a sixteen-year business relationship during which they developed commercial properties throughout New England. Beaudoin and Feldman developed a grocery store in Colchester (the Colchester store) in 1997 or 1998. In 2012, the Colchester store sold to a third party for $14,500,000. The net proceeds before distribution were $1,300,000. Feldman would have been entitled to two-thirds and Beaudoin to one-third of the proceeds. However, Feldman distributed 100% of the net proceeds to himself as reimbursement for monthly payments made by Feldman to Beaudoin from 2005 through 2010. Consequently, Beaudoin filed suit against Feldman for claims of conversion, breach of fiduciary duty, and unjust enrichment and sought both compensatory and punitive damages. After hearing all the evidence and closing arguments, the jury determined that Feldman had converted Beaudoin’s share of the Colchester-store sale proceeds, that he breached his fiduciary duty to Beaudoin, and that he was unjustly enriched by the sale. As a result, they awarded $432,300 in compensatory damages and $250,000 in punitive damages to Beaudoin. After review, the Vermont Supreme Court struck the award of punitive damages, but affirmed in all other respect, finding no other reversible error. View "Beaudoin v. Feldman" on Justia Law

DefendantMitchell Bowen appeals his conviction for sexual assault following his guilty plea, arguing that during the plea colloquy the trial court failed to comply with Vermont Rule of Criminal Procedure 11(f) and did not establish a factual basis for the charge. The Vermont Supreme Court held that the standard for reviewing Rule 11(f) challenges in direct-appeal cases was the same as that used for challenges brought in post-conviction relief (PCR) proceedings. Under that standard, the Court concluded the colloquy in this case did not comply with the requirements of Rule 11(f), and reversed and remanded. View "Vermont v. Bowen" on Justia Law

Defendant Ernest Phillips filed an interlocutory appeal of the trial court’s denial of his motion to accept a plea agreement after lengthy litigation in the criminal division concerning defendant’s alleged sexual contact with two minors between 2012 and 2014. In November 2012, the Vermont State Police investigated allegations that defendant had sexual contact with two female minors pursuant to a complaint received from a dance school where defendant worked as an instructor. The complaint alleged defendant had engaged in sexual contact with a seventeen-year-old student and a fifteen-year-old student. On appeal of the denial of his motion, defendant argued the trial court accepted his proposed plea agreement and therefore could not subsequently reject it. In addition, he argued the trial court’s reasons for rejecting the proposed plea agreement were legally invalid. The Vermont Supreme Court granted permission for the interlocutory appeal on the following questions: (1) may a defendant waive the right to a direct appeal as a condition of a plea agreement; (2) may a defendant enter a plea to a reduced criminal charge based upon a statute that did not exist at the time of the commission of the original offense; and (3) is the trial court authorized to reject a plea agreement after accepting it. The Court answered the first question in the affirmative and therefore did not reach the second question. The third question was moot because the Court held the trial court never accepted the plea agreement. Accordingly, the case was remanded back to the trial court to reconsider whether to accept or reject the plea agreement. View "Vermont v. Phillips" on Justia Law

At issue before the Vermont Supreme Court in this case was whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant’s dogs to a third person outside of the landlord’s property. The Supreme Court concluded plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirmed. View "Gross v. Turner" on Justia Law

Father Mar-Rea Terino appealed the family court’s denial of his request to include a mechanism in his divorce decree for revisiting parent-child contact for his two-year-old child as the child got older, particularly as the child reached school age. Father also argued the family court erred in failing to address various proposals in his parenting plan. The Vermont Supreme Court found trial court may anticipate that a parent-child contact schedule, which was developed specifically to meet present needs that the child will predictably outgrow, may be ill suited to the child’s best interests at an identified future time. In such cases, the trial court cannot prejudge the child’s best interests at that future time. The court may, however, establish the expectation that the parties will revisit the schedule, through their own negotiation or mediation if necessary, to ensure that it meets the child’s bests interests in that predictable next stage of a child’s life. The parties’ failure to reach an agreement at that time may be an unanticipated change of circumstances. Therefore, the Supreme Court concluded courts have the discretion to include such a provision, but should do so sparingly and with an articulated rationale. On remand, the trial court was not bound to exercise its discretion to include a provision of the sort described by the father in his appeal. The Supreme Court concluded the trial court did not abuse its discretion in failing to specifically address the various proposals in father’s proposed parenting plan. Finally, although the trial court had the discretion to incorporate provisions regarding dispute resolution between mother and father, it was not required to do so. If, on remand, the trial court elected to address the matter, it may do so, but the Supreme Court concluded its silence on this question did not amount to an abuse of discretion. View "Terino v. Bleeks" on Justia Law