This case stemmed from an indemnity dispute between two defendants in a suit arising after plaintiff Michael Hemond suffered a tragic electrocution injury while working on an electrical switch. Defendant Frontier Communications of America, Inc. appealed trial court decisions denying its cross-claims for indemnity against three codefendants, Stantec Consulting, Inc., Turner Electric Corporation, and Graybar Electric Company. Frontier argued on appeal that it was entitled to implied indemnification from all three codefendants and express indemnity from Graybar, and the court erred in granting summary judgment because there are disputed questions of fact. Finding no reversible error, the Supreme Court affirmed. View "Hemond v. Frontier Communications" on Justia Law

Respondent T.S.S. appealed a Superior Court decision granting the commissioner of the Department of Mental Health's application for a continued order of non-hospitalization (ONH) compelling T.S.S. to continue undergoing mental-health treatment. T.S.S. argued that the superior court erred in interpreting 18 V.S.A. 7101(16) and applying it to the evidence. T.S.S. suffered from paranoid schizophrenia. T.S.S. "has demonstrated a clear pattern that for a short period of time, despite denying that he has a mental illness, he, on orders of non-hospitalization, will take medications and improve significantly. But when he is off the order of non-hospitalization, he quickly goes off medications and deteriorates." Over the fifteen-year history testified to at the hearing, there was no evidence that T.S.S. exhibited assaultive behavior or posed a danger to others. There was evidence, however, that at times T.S.S. posed a danger to himself. In June 2013, the commissioner filed an application for continued treatment. T.S.S. did not contest the application and stipulated to entry of the order. On May 27, 2014, the superior court granted the commissioner's application. T.S.S. appealed. Upon review of the Superior Court's interpretation of 7101(6), the Supreme Court concluded that the superior court applied the wrong legal standard to the evidence, and that the evidence and findings did not support a continued ONH in this case. View "In re T.S.S." on Justia Law

In 2013, defendant Robert Vezina pleaded guilty to one count of petit larceny in connection with the theft of seven pieces of musical equipment in July 2012. Defendant's sentence included a restitution order. The items taken were from the victim's rare drumming equipment collection, much of which was no longer being produced. The court found that the items which were damaged or stolen were collector's items, for which there is no "blue book" value as there is for automobiles. They were in "impeccable" condition before the larceny, as the owner did not let others play or touch his drum equipment. Because they are no longer being produced, most of the items in the owner's collection, when they were intact, were probably more valuable than when the owner originally purchased them. The cymbals that were damaged are no longer valuable collector's items. Defendant challenged the restitution order for the cymbals, arguing the trial court erred by concluding that certain cymbals that had been stolen but then returned in a degraded but functional condition were worthless; by awarding restitution based on the subjective value of the cymbals to the victim; and by ordering defendant to pay restitution without making a finding on his ability to pay. Upon review, the Supreme Court affirmed on the first two issues, and reversed and remanded for further proceedings concerning defendant's ability to pay. View "Vermont v. Vezina" on Justia Law

In February 2004, the Department for Children and Families (DCF) determined that petitioner K.R. placed her son T.F. at risk of harm, and it included her name on the Child Protection Registry. This determination followed a reported 2003 overdose on a controlled substance. In 2011, an independent administrative reviewer accepted the substantiation, and the Human Services Board upheld this decision. In its review, the Board found the social worker's testimony credible in setting out DCF's history with petitioner, DCF's concerns about petitioner's drug use, and the reasons for the substantiation. The social worker also kept contemporaneous case notes detailing the history of her interactions with petitioner, which the Board found corroborated her testimony. Petitioner argued to the Board that DCF failed to meet its burden of proof. She asserted that any information regarding her interactions with DCF after the 2003 overdose were irrelevant pursuant to Vermont case law. She stated that she did not place T.F. at risk of harm because he was not in her care on the day that she overdosed. Petitioner argued on appeal to the Supreme Court that that the hearing officer impermissibly found that "the Board can take notice of information documenting the effects on those using Oxycontin including impaired judgment," and that those effects "can compromise a person's ability to parent resulting in placing a child at risk of harm." She contended that the mere use of illegally obtained regulated drugs could be a per se ground for substantiation. The only order on appeal was that issued by the Board, and the Board expressly declined to adopt the finding that petitioner challenged on appeal before the Supreme Court. After review, the Supreme Court found the Board's findings did not support its decision: without any evidence that T.F. was actually at risk, petitioner could not be found to have failed to mitigate a risk to her child by failing to comply with DCF's recommendations. Th View "In re K.R." on Justia Law

Tenant was the successor lessee to a thirty-year lease on a commercial property in Brattleboro. The lease was executed in 1987. The lease established a basic annual rent of $26,500 in paragraph 8, and then set forth how the rent would increase in subsequent years. Pursuant to the rent-increase provision, each year landlords calculated the annual rent increase and sent a notice to tenant. The increase was calculated as the percentage change in the CPI from the previous year to the current year multiplied by the previous year's rent. This increase was then added to the prior year's rent to arrive at the new annual rent. In March 2007, tenant assumed the lease. From 2008 to 2012, landlords sent rent-increase notices and tenant paid rent annually adjusted for increases, calculated according to this method, without objection. In 2013, landlords sent the annual rent increase notice to tenants. The notice reflected the new 2013 rent as $54,060. Tenant objected to the amount of rent and the calculation method for rental increases. The parties were unable to resolve their dispute, and tenant filed an action seeking both a declaration that its interpretation of the lease language was correct and damages for overpaid rent. Tenant appealed the court's order granting summary judgment in favor of defendant landlords on the parties' dispute concerning a rental-increase provision of the lease. Tenant argued on appeal that the court erred in using extrinsic evidence to interpret a portion of the lease tenant believed was unambiguous, and in reaching an inequitable result. Finding no reversible error, the Supreme Court affirmed. View "B&C Management Vermont, Inc. v. John, Ringey & Beck" on Justia Law

The issue on appeal to the Supreme Court in this case centered on a father's obligation to pay college tuition for his daughters pursuant to a Pennsylvania child-support order. The parties, father Frank A. Scopetti, Jr., and mother Kimberley Marie Scopetti, were married in Pennsylvania and had two daughters. They entered into a separation agreement in 1998, when their elder daughter, Indie, was six years old, and their younger daughter, Francesca, was five years old. The separation agreement was a two-page, handwritten document. Paragraph 4 of the agreement provided: "Frank Scopetti agrees to provide college tuition for Francesca and Indie [at] an institution acceptable to Frank Scopetti." The separation agreement was incorporated into a final decree of divorce issued in Pennsylvania in 2000. Following the parties' divorce, mother and the daughters moved to Vermont, and father moved to Arizona. On September 28, 2010, mother registered the parties' Pennsylvania support order in Vermont. That fall, Indie began studying at George Mason University (GMU) in Virginia. During the 2010-11 school year, father paid only a portion of Indie's tuition. Father appeals the trial-court order requiring him to pay specified college-tuition costs for his two daughters. After review of the trial court order, the Supreme Court found no reversible error and affirmed. View "Dyke v. Scopetti" on Justia Law

Insurer Cincinnati Specialty Underwriters Insurance Company appealed a trial court's order granting summary judgment to defendants Energy Wise, Inc. and Michael and Shirley Uhler in this declaratory-judgment action. Energy Wise was a Vermont corporation that specialized in insulating buildings and homes. It purchased a commercial general liability (CGL) policy from insurer, effective March 1, 2010 to March 1, 2011. In late 2010, Energy Wise installed spray-foam insulation at the Shrewsbury Mountain School. A school employee, Shirley Uhler, and her husband later filed suit against Energy Wise. Ms. Uhler asserted that she was "exposed to and encountered airborne chemicals and airborne residues" from the spray-foam insulation and suffered bodily injury as a result. The Uhlers raised claims of negligence, res ipsa loquitur, and loss of consortium. Energy Wise requested coverage under its CGL policy, and insurer agreed to defend Energy Wise under a bilateral reservation of rights. In September 2012, insurer filed a complaint for declaratory judgment, asserting that its policy did not cover the claims at issue. Insurer cited the "Total Pollution Exclusion Endorsement" in its policy, which excluded coverage for "[b]odily injury . . . [that] would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants' at any time." Insurer argued that the court should have granted summary judgment in its favor because the "total pollution exclusion" in its policy plainly and unambiguously precludes coverage in this case. After review, the Supreme Court agreed with insurer, and therefore reversed the trial court's decision and remanded with instructions to enter judgment in insurer's favor. View "Cincinnati Specialty Underwriters Ins. Co. v. Energy Wise Homes, Inc." on Justia Law

Defendant Gordon Campbell appealed two special sex-offender conditions of probation imposed upon him following being sentenced on a plea agreement for one count of aggravated assault and one count of sexual assault. The charges stemmed from an incident occurring earlier that March during which defendant, after drinking several pitchers of beer at several bars in downtown Burlington, was approached on the street by a young man looking for directions to a local house and for some cocaine. During the encounter, defendant offered the young man money in exchange for oral sex. The young man declined and began to walk away, but defendant followed him, repeatedly asking for oral sex and offering to pay. After the young man told defendant that he was not a "faggot," defendant physically and sexually assaulted the young man behind a restaurant. In March 2007, pursuant to a plea agreement with the State, defendant pled guilty to all counts and was sentenced that August. Subsequently, defendant filed a post-conviction relief petition in the civil division and moved for summary judgment. The civil division granted defendant's motion for summary judgment, vacated defendant's sentence, and remanded to the criminal division with leave for defendant to withdraw his plea. Thereafter, defendant and the State negotiated a new plea agreement where defendant agreed to plead guilty to the two assault charges and the State agreed it would dismiss the violation-of-conditions charge. A pre-sentence investigation (PSI) and psycho-sexual evaluation were ordered to accompany the new plea agreement, and the court delayed accepting the agreement until it had a chance to review the PSI. Defendant, upon receipt of the PSI and prior to the sentencing hearing, filed various written objections to the PSI with the court, including objections to the two special sex-offender conditions of probation, in the language originally proposed by DOC in the PSI. Specifically, defendant challenged condition 42, requiring that defendant submit to and pay for polygraph examinations; and condition 44, requiring that defendant reside and work only where approved by his probation officer. After the Supreme Court's review, defendant's sentence was affirmed in all respects except that the work / employment provisions of condition 44 were stricken and the matter remanded to the criminal division of the superior court for an opportunity to justify, revise, or remove those provisions of condition 44 consistent with the Court's opinion, and to make any findings the criminal division deemed necessary. View "Vermont v. Campbell" on Justia Law

The New England Police Benevolent Association (NEPBA) appealed the Vermont Labor Relations Board's dismissal of NEPBA's petition for election of a collective-bargaining representative for NEPBA's failure to provide justification for its untimely filing. On January 30, 2014, NEPBA filed a petition for the election of a collective-bargaining representative to represent the sworn law enforcement officers of the Vermont Department of Fish and Wildlife, Vermont Department of Liquor Control, and Vermont Department of Motor Vehicles (collectively "the officers"). The officers seeking new representation were among those in the Non-Management Bargaining Unit, which was covered by a collective-bargaining agreement between the Vermont State Employees Association (VSEA) and the State of Vermont. The existing collective-bargaining agreement was set to expire on June 30, 2014, and the Non-Management Bargaining Unit was scheduled to conduct a ratification vote on a successor agreement on January 31, 2014, the day after the petition was filed. On appeal, NEPBA argued that the Board failed to consider its proffered justification and instead improperly concluded that the NEPBA provided no justification. Moreover, NEPBA asserted that the Board failed to conduct any analysis in support of its position, explain its findings, or define the applicable legal standard. NEPBA also argued that its proffered justification that the pending ratification of the successor agreement would foreclose the officers' opportunity to select a collective-bargaining representative ­is sufficient to waive the normal period for timely filing. The Supreme Court disagreed with NEPBA on the first issue and held that the Board did not err in dismissing the petition for NEPBA's failure to provide a justification for the untimely filing. View "In re New England Police Benevolent Association Petition for Election of Collective Bargaining Representative" on Justia Law

Plaintiffs appealed the grant of summary judgment in favor of defendant realtor who represented the seller in the sale of an inn. Plaintiffs argued that the trial court erred in concluding that defendant's alleged misrepresentation and omission were immaterial as a matter of law. Defendant Barbara Walowit Realty, Inc. was the listing agent for the inn. The prior-prospective purchaser claims she told defendant during their conversation that she had witnessed flooding in the parking lot and had learned of "major problems with the roof and that there was a possibility of collapse." Based on statements made by defendant, and a report prepared by the seller with regard to the condition of the inn, plainitffs entered into a purchase-and-sale agreement with the seller in December 2007. The agreement contained an inspection contingency. At the recommendation of defendant, plaintiffs then hired engineers to perform a pre-purchase structural inspection of the property, and received an inspection report in late January 2008. The sale closed in May 2008. In September, after encountering various problems relating to the condition of the inn, plaintiffs sued defendant for negligence and consumer fraud for defendant's alleged misrepresentations and omissions concerning the condition of the inn. Plaintiffs and defendant filed cross-motions for summary judgment. On the claim of negligence, the trial court granted summary judgment to defendant. As to the claim of consumer fraud, the court considered, among other things, defendant's alleged failure to disclose the contents of her conversation with the prior-prospective purchaser and to disclose the estimate of roof repair costs that was in her files. The court concluded that the statements from the prior-prospective purchaser were "simply too vague and foundationless to give rise to knowledge of specific material facts that [defendant] would have a duty to disclose" under the Consumer Fraud Act. The court further concluded that defendant's failure to disclose the roof-repair estimate was not a material omission because plaintiffs "already knew the roof needed repairs" from the engineer's report, and disclosure "would have left them in the same position in which the report placed them; needing to make further inquiry." Thus, the court concluded that the estimate "cannot be considered material as a matter of law," and granted judgment to defendant. Plaintiffs appealed. Finding no reversible error in the trial court's decision with regard to the consumer protection claim, the Vermont Supreme Court affirmed. View "PH West Dover Property, LLC. v. Lalancette Engineers" on Justia Law