A decision of the Environmental Division came to the Vermont Supreme Court on interlocutory appeal. Applicants, Richard J. Bove, Sr. and Rick Bove, applied to the City of Burlington Development Review Board (DRB) to construct a development on their two adjacent lots. A zoning-district-boundary line runs through the middle of the proposed development, dividing the two parcels. The city’s zoning ordinance required a fifteen-foot setback intended to be a buffer between the two districts (one downtown and the other residential). The DRB denied the application, and applicants appealed to the Environmental Division. The Environmental Division concluded that, although the merger of the two adjacent lots eliminated the property line dividing the two parcels, the merger did not eliminate the fifteen-foot buffer required by the zoning ordinance. Finding no reversible error, the Supreme Court affirmed. View "In re Bove Demolition/Construction Application" on Justia Law

Defendant Eric Manning was charged with possession of cocaine following a traffic stop. He moved to suppress the evidence obtained during the investigative detention, arguing that it was the result of an unlawful search and seizure that exceeded the scope of the suspended license investigation in violation of the Fourth Amendment to the U.S. Constitution and Chapter I, Article 11 of the Vermont Constitution. He also moved to suppress statements made before the officer advised him of his Miranda rights, arguing that the questioning outside his vehicle amounted to a custodial interrogation. Finding no reversible error, the Supreme Court affirmed the trial court’s decision to deny defendant’s motion to suppress, and affirmed his conviction. View "Vermont v. Manning" on Justia Law

At issue in this appeal was a jury verdict rendered in favor of Rutland Hospital, Inc., d/b/a Rutland Regional Medical Center, and related entities (“RRMC”) and Dr. Santiago Cancio-Bello arising from injuries due to claimed medical malpractice in connection with the birth of Amy and Robert Labates’ daughter in 2007. Following the return of the jury verdict in favor of RRMC and Cancio-Bello, the Labates moved for a new trial on several different grounds, many of which concerned alleged juror misconduct, including a claim that a juror read an e-mail sent by RRMC to its employees during the trial and therefore tainted the verdict. The trial court denied the motion without a hearing and this appeal followed. The only issue before the Supreme Court centered on that e-mail. Finding no reversible error, the Supreme Court affirmed the trial court. View "Labate v. Rutland Hospital, Inc." on Justia Law

This case arose from a divorce proceeding between plaintiff Kenneth Felis and his former wife, Vicki. Defendant Downs Rachlin Martin, PLLC (DRM) represented Vicki Felis in the divorce proceeding, and defendant Gallagher, Flynn & Company, LLP (GFC) was retained by DRM on behalf of Ms. Felis to prepare business valuations related to the proceeding. Plaintiff appealed the Superior Court decision to grant defendants’ motions to dismiss plaintiff’s claims of fraud and breach of fiduciary duty based on DRM’s representation of Ms. Felis. GFC cross-appealed the superior court’s denial of its motion to strike pursuant to 12 V.S.A. 1041. Finding no reversible error, the Vermont Supreme Court affirmed. View "Felis v. Downs Rachlin Martin, PLLC" on Justia Law

Mary McGuire and Douglas Grover separately appeal from orders of the Public Service Board granting Basin Harbor Club (BHC) a certificate of public good for the installation of a photovoltaic net metering system, and denying McGuire’s motion for reconsideration. After review, the Supreme Court concluded that the Board erred in denying McGuire’s motion for reconsideration on the ground that she lacked party status, reversed and remanded. View "In re Application of Beach Properties, Inc. d/b/a Basin Harbor Club" on Justia Law

This appeal stemmed from a superior court decision to grant summary judgment in favor of defendant Caroline Marini on plaintiff EverBank’s complaint for foreclosure on a mortgage that Caroline signed in 2009 together with her co-defendant and then-husband Gary Marini. In ruling on cross-motions for summary judgment, following a hearing, the trial court concluded that Caroline was entitled to judgment as a matter of law on EverBank’s foreclosure complaint because the undisputed material facts established that Caroline signed the mortgage under the threat of physical violence from Gary and thus the mortgage was void as to her. The trial court also concluded that regardless of whether the mortgage was void as to Caroline, EverBank was not a bona fide purchaser. EverBank subsequently moved to alter or amend the judgment on the ground that the grant of summary judgment as to Caroline unjustly enriched her. The trial court denied the motion, explaining that EverBank had not raised the issue of unjust enrichment in response to Caroline’s cross-motion for summary judgment. EverBank appealed both decisions. After review, the Supreme Court reversed the decision granting summary judgment in favor of Caroline on the issue of whether the mortgage was void, and directed the trial court to enter judgment for EverBank on that issue. The Court remanded for trial the issues of whether the mortgage was voidable and, if so, whether it was enforceable because it was ratified by Caroline, but affirmed the trial court’s decision that the bona fide purchaser doctrine was not available to EverBank. View "Everbank v. Marini" on Justia Law

Defendant Kent Richland was convicted by jury and sentenced to probation for enabling the consumption of alcohol by a minor. In 2013, defendant received a text message from a sixteen-year-old minor asking defendant to purchase alcohol for him. Defendant agreed but could not find his identification and instead arranged for a friend to purchase the alcohol. Later that day, defendant's friend purchased a bottle of gin for the minor at a local beverage store. The next day, the minor was found dead near his family home after crashing his all-terrain vehicle (ATV) while intoxicated. Defendant moved for a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure 29, arguing that the evidence was insufficient for a reasonable jury to conclude that he had knowledge of the minor's age or that he created a direct and immediate opportunity for the minor to consume alcohol. The court denied defendant's motion, finding the evidence sufficient to sustain a jury verdict of guilty and reiterating its statement that the age element is strict liability and does not require proof of knowledge. Defendant was found guilty after a short jury deliberation and sentenced to twelve-to-twenty-four-months incarceration, all suspended except for six months to serve. Defendant raised four issues on appeal: (1) the trial court committed reversible error in instructing the jury that 7 V.S.A. 658(a)(2) did not require knowledge of the minor's age; (2) the evidence presented at trial was insufficient to prove defendant enabled the minor's alcohol consumption; (3) the court's imposition of probation during the pendency of this appeal created a harsher, indeterminate term of probation, thereby penalizing defendant for exercising his right to appeal; and (4) the standard form probation conditions were invalid. The Supreme Court agreed with defendant on the first issue and held that section 658(a)(2) required the State to prove defendant had knowledge of the minor's age and that the court's error in instructing the jury to the contrary was not harmless. Because the Court reversed and remanded for a new trial, it did not address the remaining three issues. View "Vermont v. Richland" on Justia Law

Fecteau Residential Homes, Inc. (seller) was in the business of selling manufactured modular homes. In early November of 2010, Janet and Mark McKinstry (buyers) entered into a written contract with seller for the purchase of a demonstrator modular home on seller's lot. Buyers tendered a $5000 deposit toward the purchase price, obtained financing, and engaged a contractor to lay the necessary footings and foundation for the home. Shortly thereafter, however, seller's owner Vic Fecteau called buyers to offer them a new, identical modular home at the same price instead of the demonstrator model for which they had contracted for reasons related to financial difficulties in obtaining a replacement floor model from that particular manufacturer. Buyers rejected the offer, the parties argued, and Fecteau cancelled the deal and subsequently returned the $5000 deposit. Buyers purchased a slightly larger modular home from a different dealer, which required modifications to the partially completed foundation to install. Buyers then filed this action under the Consumer Protection Act, alleging that seller misrepresented its intention to sell them the demonstrator model for which they had contracted; that they relied to their detriment on the misrepresentation, in part by paying for a foundation "to meet the dimensions of the home sold to them by [seller]"; and that they incurred additional expenses when forced to install a different model. Buyers sought damages, exemplary damages, and attorney's fees. Seller moved for summary judgment, asserting that buyers had failed to establish an essential element of consumer fraud by showing a misrepresentation or omission of material fact at the time of contracting, failed to establish that they were "consumers" within the meaning of the Act, and failed to mitigate their damages. The trial court denied the motion. Following a two-day trial, the jury returned a special verdict in favor of buyers, finding that there consumer fraud, and awarded $1,000 in damages. Seller moved to offset any attorney's fee award by the $5000 deposit refunded to buyers in order to a "preclude double recovery" under the Act. The trial court found, "Given the minimal recovery, the fact that recovery was questionable from the start, and the lack of any public purpose served by this case," a reasonable fee award for recovery was $15,000. The court granted buyers' request for costs for a total of $1360. Turning to the $5000 offset, the court concluded that, under the Act, buyers were not entitled to both a return of their consideration and an award of damages, and determined that "the $5000 will be treated as a credit toward the attorney's fees." Seller subsequently moved for judgment notwithstanding the verdict to overturn the entire judgment. Buyers opposed the motion, and also moved for reconsideration of the attorney's fee award, asserting that the $5000 offset was improper. The Supreme Court found that the evidence was sufficient to find a misrepresentation or omission of material fact, and that the return of the deposit had nothing to do with buyers' claim that seller violated the Act. It found no basis for the $5000 set-off against attorney's fees ordered by the trial court. The $1000 damage award was affirmed. The attorney's fee award was modified to eliminate the $5000 set off, resulting in a total judgment of $17,360. View "McKinstry v. Fecteau Residential Homes, Inc." on Justia Law

M.O. was born on December 14, 2014. Mother was twenty-one years old at the time; father was thirty-four. On December 17, 2014, the Department for Children and Families (DCF) filed a petition alleging that M.O. was child in need of care or supervision (CHINS). It sought emergency custody of the child. In the accompanying affidavit, a DCF social worker asserted that DCF had received a report from hospital staff expressing concern about parents' ability to adequately care for M.O. The court issued an emergency care order on December 17, 2014, and transferred temporary custody to DCF. On appeal of the trial court's finding, the father argued the trial court's findings were too vague to support its conclusion that M.O. was CHINS. He asserted that, at most, the court's findings reflected speculation that there was a potential higher risk of harm to M.O. because M.O.'s parents had unidentified "risk factors." According to father, there was nothing in the court's findings about the prenatal nurse visits or the hospital social worker's testimony that would establish the basis for a CHINS finding. Father maintained that a potential risk of harm to M.O. was not enough. Father also contended that the court failed to make sufficient findings to enable the Vermont Supreme Court to review its decision. The Supreme Court, after review, disagreed and affirmed. "We emphasize that, contrary to father's characterization of the facts, the evidence here suggests something far more serious than garden-variety new-parent jitters. Even after many months of prenatal coaching, mother was not attuned to M.O.'s cues, and could not perform basic parenting tasks such as holding the baby, feeding the baby, and checking and changing the baby's diaper. And the evidence before the court was that simple coaching of mother by professionals in the hospital would not be enough to ensure M.O.'s safety. … The trial court did not base its determination on any presumptions arising from mother's self-described learning disability, or her observed cognitive limitations. It based its determination on her observed parenting ability." The Court considered all of father's other arguments and found them to be without merit. View "In re M.O." on Justia Law

The estate of husband, William E. Simendinger, appealed an injunction order by the Superior Court that encumbered all real property held by the estate. Husband's estate also challenged the family court's award of attorney's fees. Wife Connie Simendinger and husband were married in 1987. They divorced in 2014. The final order and decree of divorce incorporated a stipulation between the parties, which provided in pertinent part that in lieu of alimony, the husband shall pay to the wife the sum of $2,250,000 ($50,000 within 30 days and the balance of $2,200,000 in one year). This amount was secured by real estate, and had been owned solely by the husband, free and clear of all mortgages. Wife received the $50,000, but husband did not subsequently pay the $2.2 million balance or secure the unpaid amount in real estate. After the thirty-day deadline passed, wife filed a motion for contempt and enforcement, as well as a motion for attorney's fees. The family court set a hearing date for August 2014 to determine how best to proceed. The decree nisi became absolute on May 3, 2014. Then husband died unexpectedly on July 14. His estate was substituted as party. The family court denied the contempt motion, and enjoined the estate from disposing or otherwise encumbering any real estate that might be subject to the divorce decree stipulation. On appeal, husband's estate argued that the family court abused its discretion by: (1) issuing an injunction against husband's estate absent a hearing to show that husband had violated a court order; (2) including certain "business properties" within the scope of the injunction; and (3) awarding attorney's fees to wife without first clearly establishing a factual basis to support an award of attorney's fees. Upon review of the family court record, the Supreme Court found no reversible error, and affirmed. View "Simendinger v. Simendinger" on Justia Law