Defendant Shawn Bellanger appealed after a jury found him guilty of aggravated sexual assault of a child under 13 and lewd or lascivious conduct with a child under 13. On appeal, defendant raised arguments related to the jury instructions, the sufficiency of the State’s evidence, and the prosecutor’s closing argument. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Bellanger" on Justia Law

The issue this case presented for the Vermont Supreme Court's review concerned whether a trial court could modify parental rights and responsibilities when one parent was relocating if that issue was not expressly raised by motion and the sole motion before the court was the relocating parent’s motion to modify parent-child contact. Katie Churchill (mother) appealed a trial court decision that transferred the right to choose the children’s residence and school from her to Landon Bonk (father) and that reconfigured the parties’ existing contact schedule, reducing her time with her children from approximately 65% to 20%. The Supreme Court held the mother’s motion to modify parent-child contact and father’s motion to dismiss in response did not raise the issue of the parties’ parental rights and responsibilities. Therefore, the trial court abused its discretion by issuing an order modifying parental rights and responsibilities. Furthermore, the Court held that the trial court proceedings supported finding a sufficient change of circumstances to grant mother’s motion to modify parent-child contact. Accordingly, the Supreme Court reversed and remanded for the trial court to set a new parent-child contact schedule. View "Bonk v. Bonk" on Justia Law

The issue this case presented for the Vermont Supreme Court’s review centered on whether a party who participates extensively and without objection in an arbitration proceeding for nearly seven months prior to the actual arbitration hearing waives an objection to the validity of the arbitration agreement. Lesley Adams, William Adams, and Adams Construction VT, LLC (collectively Adams Construction) appealed the trial court’s denial of their application to vacate an arbitration award in favor of Russell Barr and the Barr Law Group (collectively Barr Law Group) and against Adams Construction. The Supreme Court concluded, based on this premise, Adams Construction indeed waived its challenge to the validity of the arbitration agreement. The Court, therefore, affirmed the trial court. View "Adams v. Barr" on Justia Law

Petitioner Edwin Towne, Jr. appealed the dismissal of his tenth and eleventh petitions for post-conviction relief (PCR). In 1989, petitioner was convicted of first-degree murder. In his ninth petition, petitioner argued the 1986 traffic stop that precipitated his arrest for murder, he had ineffective assistance of counsel during both his trial and direct appeal. In the tenth and eleventh petitions, petitioner raised arguments similar to those previously raised in petitions one through nine. In March 2013, the PCR court granted the State’s motion to dismiss. With respect to petitioner’s claims of ineffective assistance of trial counsel, the court concluded on the basis of the reasoning in Martinez v. Ryan, 556 U.S. 1 (2012) and Maples v. Thomas, 565 U.S. 266 (2012), that ineffectiveness of petitioner’s lawyer in his first PCR proceeding could overcome the procedural bars of successiveness and abuse of the writ to enable the court to consider the merits of petitioner’s PCR claims on the basis of ineffective assistance of trial counsel. However, the court concluded that petitioner had failed to establish that the first PCR court had erred in determining that his ineffective-assistance-of-trial-counsel claim was without merit. In September 2015, the court dismissed the eleventh petition on the basis that his claims had either already been raised and addressed on the merits in previous petitions, or they could have been raised in previous petitions. Furthermore, the court noted that “there is nothing to suggest that if trial counsel had done what [petitioner] now thinks he should have done, the result at his trial or sentencing would have been different.” The Vermont Supreme Court found that petitioner’s claims that were not addressed on the merits in earlier petitions were an abuse of the writ under any standard of review. “For that reason, our resolution of this case does not turn on whether we review the trial court’s ruling as to newly raised claims for abuse of discretion or without deference. We accordingly decline to decide at this juncture which standard governs our review of the trial court’s dismissal of claims raised in a second or subsequent PCR petition on account of abuse of the writ.” Because his various claims are either successive, an abuse of the writ, or outside the scope of the PCR statute, the Supreme Court affirmed their dismissal. View "In re Edwin A. Towne, Jr." on Justia Law

Petitioner Edwin Towne, Jr. appealed the dismissal of his tenth and eleventh petitions for post-conviction relief (PCR). In 1989, petitioner was convicted of first-degree murder. In his ninth petition, petitioner argued the 1986 traffic stop that precipitated his arrest for murder, he had ineffective assistance of counsel during both his trial and direct appeal. In the tenth and eleventh petitions, petitioner raised arguments similar to those previously raised in petitions one through nine. In March 2013, the PCR court granted the State’s motion to dismiss. With respect to petitioner’s claims of ineffective assistance of trial counsel, the court concluded on the basis of the reasoning in Martinez v. Ryan, 556 U.S. 1 (2012) and Maples v. Thomas, 565 U.S. 266 (2012), that ineffectiveness of petitioner’s lawyer in his first PCR proceeding could overcome the procedural bars of successiveness and abuse of the writ to enable the court to consider the merits of petitioner’s PCR claims on the basis of ineffective assistance of trial counsel. However, the court concluded that petitioner had failed to establish that the first PCR court had erred in determining that his ineffective-assistance-of-trial-counsel claim was without merit. In September 2015, the court dismissed the eleventh petition on the basis that his claims had either already been raised and addressed on the merits in previous petitions, or they could have been raised in previous petitions. Furthermore, the court noted that “there is nothing to suggest that if trial counsel had done what [petitioner] now thinks he should have done, the result at his trial or sentencing would have been different.” The Vermont Supreme Court found that petitioner’s claims that were not addressed on the merits in earlier petitions were an abuse of the writ under any standard of review. “For that reason, our resolution of this case does not turn on whether we review the trial court’s ruling as to newly raised claims for abuse of discretion or without deference. We accordingly decline to decide at this juncture which standard governs our review of the trial court’s dismissal of claims raised in a second or subsequent PCR petition on account of abuse of the writ.” Because his various claims are either successive, an abuse of the writ, or outside the scope of the PCR statute, the Supreme Court affirmed their dismissal. View "In re Edwin A. Towne, Jr." on Justia Law

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

Cheryl Brown and Matthew Denis were involved in a traffic accident, when Denis’s truck bumped into Brown’s car from behind. Denis claimed the accident happened when he inadvertently took his foot off the brake as he turned to roll the rear window down to provide fresh air to his dog, who was riding in the back seat. Denis’s truck, which was positioned behind Brown’s car, rolled forward five to six feet, striking her rear bumper. The collision took place in stop-and-go traffic. Denis, a sergeant with the Vermont State Police, estimated his speed at impact to be two miles per hour and did not believe there was any damage caused to Brown’s vehicle from the collision. Brown claimed the impact caused a scratch on her rear bumper. The truck Denis was driving did not have any markings indicating it was a police vehicle. Brown filed suit against the State of Vermont alleging it was responsible for injuries she sustained in the accident due to Denis’s negligence. Brown also raised constitutional claims, alleging: (1) due process and equality of treatment violations under the Vermont Constitution’s Common Benefits Clause, and (2) an equal protection, and possibly a due process, claim under the United States Constitution. Brown did not name Denis as a defendant in her suit. Brown’s constitutional claims were based on her assertion that Denis received favorable treatment because he was not prosecuted for causing the accident or leaving the scene without providing identifying information. Before trial, the court dismissed the due process and equal protection claims under the United States Constitution on the basis that Brown had only sued the State, and not Denis personally, and that the State was not a “person” for claims arising under 42 U.S.C. 1983. The court further ruled that Brown lacked standing to assert any claim based on the State’s failure to prosecute Denis. The court also dismissed the Common Benefits Clause claim because Brown lacked any cognizable interest in the prosecution or discipline of Denis. Lastly, the court held that, to the extent a due process claim had been raised, it was undisputed that Brown received the information required to be exchanged in the event of a car collision shortly after the accident, and her ability to file suit against the State as a result of the accident showed her due process rights were not impeded. On appeal, Brown alleged several errors in pre-trial and trial rulings, as well as in the failure to grant her a new trial. Finding no reversible error, the Vermont Supreme Court affirmed. View "Brown v. Vermont" on Justia Law

Stowe Cady Hill Solar (Cady Hill) applied to the Vermont Public Utility Commission for a certificate of public good to construct a group net-metered solar array in the Town of Stowe. The Commission dismissed Cady Hill’s application after finding that the application was incomplete because two adjoining landowners were not given notice that the application had been filed contemporaneous with that filing. After review, the Vermont Supreme Court held that Cady Hill’s application met the completeness requirement as that requirement has been applied in the Commission’s prior decisions and, therefore, the application should not have been dismissed. View "In re Petition of Stowe Cady Hill Solar, LLC" on Justia Law

Husband was raised in India and attended high school and college there. In 2009, he moved to Montreal, Canada to pursue a master’s degree in food science and engineering from McGill University. In 2011, Keurig Green Mountain, Inc. (employer) hired husband to be a research scientist, and brought him to Vermont on a temporary H-1B employment visa. In 2012, husband met wife, who was then residing in India. The couple married in India a short time later. Soon after the wedding, wife moved with husband to Vermont on a 4-H spouse-dependent visa; she has lived in Vermont ever since. In December 2015, while Wife was on a trip to India, husband filed for a no-fault divorce in Vermont. Upon her return, in March 2016, wife filed a complaint against husband for separate statutory spousal maintenance. The two proceedings were consolidated. Wife appealed the denial of her motion to dismiss husband’s divorce complaint under the theory that husband’s nonimmigration visa status prevented him from being a Vermont domiciliary. In addition, wife argues that husband’s complaint should be dismissed because Indian law governed the dissolution of the parties’ marriage. The Vermont Supreme Court held that husband’s nonimmigration visa status is not an impediment to his establishing Vermont residency for purposes of filing a divorce action, and that the trial court properly denied wife’s motion to dismiss. Finding no reversible error, the Vermont Supreme Court affirmed. View "Maghu v. Singh" on Justia Law