This was a case of protracted litigation between neighbors over a maple tree. The maple tree in question was about sixty-five years old and stood about sixty-five feet tall. The trunk or stem of the tree was located entirely on Bruce and Janet Alvarez's property, approximately two feet from the property line. Although the superior court considered the tree to "effectively" be on the property line, the parties agreed that the property line did not pass through the trunk of the tree, but laid to the south of the tree trunk. When the Alvarezes bought their property approximately twenty-five years ago, the tree was about one foot in diameter at the base. Approximately half of the branches and roots from the tree now cross the property boundary and encroach onto the lot belonging to Claudia Berger and Sheldon Katz. Some roots extended under the existing deck on the Berger/Katz home. For several years Berger and Katz sought to expand their home by constructing a two-story addition on the rear which would occupy roughly the same existing footprint as the house and deck at present. Berger and Katz received the necessary permits for construction of the addition. The plans for the construction of the addition to the Berger/Katz residence necessitated cutting the roots and branches that are encroaching onto their property. Efforts to amicably resolve the problem of the maple tree in light of the planned Berger/Katz addition were unsuccessful. In 2013, when Berger and Katz considered taking unilateral action to trim the tree's roots and branches, the Alvarezes filed for and received a temporary injunction, and later a permanent one. The superior court found it more likely than not that removal of 50% of the tree's roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The final injunction barred the trimming of more than 25% of the roots and branches of the tree. The trial court granted the temporary injunction, employing what it dubbed as the "urban-tree rule." Under the "urban-tree rule," as described by the trial court, trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. Although the judge hearing the permanent injunction questioned the validity of the "urban-tree rule," he felt it improper to apply a different legal analysis, relying upon it as the "law of the case." Berger and Katz argued on appeal of the superior court error that the court erred in granting an injunction because the common law allowed for an absolute right of a landowner to trim intruding branches and roots regardless of the impact on the offending tree; because there was no showing that the cutting would cause irreparable harm sufficient to support an injunction; and because injunctive relief resulted in a taking of their property without compensation. The Supreme Court reaffirmed Vermont's long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree, and vacated the injunction on that basis. As such, the Court did not reach appellants' other arguments. View "Alvarez v. Katz" on Justia Law

Defendant Stephen L. Eldert appealed the revocation of his probation resulting from a violation of a probation condition that he not purchase, possess, or consume alcohol. After review, the Supreme Court concluded that the court erred in admitting unreliable hearsay evidence at the revocation hearing, and therefore reversed. View "Vermont v. Eldert" on Justia Law

In this parentage action, the family court, in a 2006 order based on the parties' stipulation, assigned physical rights and responsibilities to mother and ordered father to pay mother $175 per month in child support. Because the new order contemplated that the minor child would spend well over thirty percent of nights with father, the parties stipulated to a new child-support order pursuant to the shared custody guidelines. In November 2008, after father was disabled in a motor vehicle accident, the family court issued a modified child-support order, again based on the parties' stipulation, that did not require either party to pay child support. In November 2010, mother, as representative payee, received from the Social Security Administration a $4370 lump-sum derivative disability benefit for the parties' son representing a twenty-three-month period between when father applied for and was granted the derivative benefit. The ongoing derivative benefit was initially $190 per month and had increased "modestly" since then. In a second appeal to the Vermont Supreme Court, father argued that the magistrate and the family division of the superior court erred on remand by not awarding him a credit for the entire lump-sum derivative Social Security Disability Insurance benefit given to mother as representative payee for the parties' son, by not imputing income to mother, and by granting mother a deviation from the child-support guidelines calculations. Finding no reversible error, the Supreme Court affirmed. View "LaMothe v. LeBlanc" on Justia Law

The issue this case presented for the Supreme Court's review centered on Vermont's statutory residency requirement for filing a divorce action. Husband Dain Gosbee filed for divorce in 2013. His wife Christina was living in Germany at the time with the parties' minor child. When he filed the divorce complaint, husband also filed a motion to establish parentage and a motion for a temporary order requiring wife to facilitate his telephonic or Web-based video communication with the minor child. Husband was born and raised in Vermont. The parties met in 2002 and began living together in Berlin, Vermont, in 2005. In 2007, the parties bought a home in East Montpelier. In 2009, their child was born. In March 2010, the parties sold their East Montpelier home, put some of their furniture in storage, and moved in with wife's parents at their home in Barre. Later that year, wife's parents moved to Germany, where wife's father worked as a civilian contractor with the U.S. military. In October, the parties decided to join wife's parents in Germany so they could "work, travel and save money." Their hope was to return to the United States when they had saved enough money for a down payment on a house. The parties never intended to relocate to Germany or another foreign country on a permanent basis. Neither ever applied for German citizenship or a permanent work visa. In Germany, the parties did not live on a U.S. military base. After the parties' return to Germany after their September 2011 wedding, husband found work in Germany. In June 2012, husband returned to Vermont to pursue an internship. Wife and the minor child followed a few weeks later. The internship did not work out, and the parties returned to Germany in early October 2012. The minor child has not been back to Vermont since that time. Prior to husband's filing for divorce, the parties had spent approximately four years in Germany. Husband returned to Vermont on October 7, 2013, five days after wife had begun German divorce proceedings, and moved in with his father. Husband did not buy property or sign a lease since returning to Vermont. He had not found full-time work. Husband expressed uncertainty about where he would reside after the divorce, and indicated that he might return to Germany if that was the only way to maintain regular contact with the child. Based on these facts (and others), the trial court concluded that husband was not a resident of Vermont at the time he filed the divorce, and therefore, it lacked jurisdiction over the proceedings. The Supreme Court agreed with the trial court's analysis of the facts, and affirmed the dismissal of husband's divorce action on grounds that the residency requirement was not satisfied. View "Gosbee v. Gosbee" on Justia Law

Appellant Allstate Bail Bonds ("Allstate") challenged the trial court's decision to grant the State's motion for forfeiture of bond. Defendant was arraigned for grand larceny and possession of stolen property. Two days later, the court set bail at $35,000. Defendant posted bail on July 2, 2013 through a bond procured from Allstate. Allstate delivered a surety bond for defendant. On January 10, 2014, defendant was incarcerated in New York on separate charges. As a result of his incarceration, defendant failed to appear at Bennington Superior Court for final calendar call on February 4, 2014, a required appearance. The next day, the court issued a warrant for defendant's arrest. On March 11, 2014, the State filed a motion to forfeit bail due to defendant's failure to appear. On June 17, 2014, the court ordered full forfeiture, finding that defendant's incarceration did not justify relief from forfeiture. On appeal, Allstate argued that the trial court abused its discretion in declining to reduce the amount of bail forfeiture when Allstate could not produce defendant due to his out-of-state incarceration. The Supreme Court agreed that Allstate was entitled to a reduction in bail forfeiture, and therefore reversed. View "Vermont v. Mottolese" on Justia Law

Defendant John Galanes appealed a superior court order that concluded he violated certain conditions of his probation, notably, the condition that required him to notify his probation officer if he was planning to begin a sexual relationship. Defendant was convicted of several felony and misdemeanor offenses and placed on probation. In August 2013, after two separate probation violations in 2010 and 2013, defendant was placed on stricter conditions regarding sexual relationships. The testimony of defendant and his housekeeper disclosed that, at the time of the encounter underlying this suit, the housekeeper did not know that defendant was at home and in the shower. Defendant came out of the shower in a towel while the housekeeper was in the bedroom folding laundry. At that point, the two had sex. The housekeeper testified that there was no planning on the part of either her or defendant. Although the trial court made no explicit findings on the number of incidents and when they occurred, its decision reflected that it was deciding the case based on the occurrence of only one sexual encounter after the date the probation condition was added. Consistent with the trial court's decision, the State based its argument on appeal on the same single incident and did not rely on multiple encounters. In revoking defendant's probation, the trial court acknowledged that defendant did not plan the sexual encounter with his housekeeper but that he should have anticipated the encounter based upon the close friendship between the two. The Supreme Court reversed, "[t]o anticipate that something may happen is not the same as to plan for it. In fact, the court concluded only that defendant should have anticipated the encounter, not that he actually did anticipate it. As such, even if we put aside the question of whether the term is ambiguous, we do not accept the trial court's conclusion as sufficient to support a finding that defendant violated the condition." View "Vermont v. Galanes" on Justia Law

Plaintiffs Heidi and James Glassford appealed a superior court decision denying their motion for summary judgment and granting it to defendant Dufresne & Associates, P.C. on plaintiffs' claims of negligent misrepresentation and violation of the Vermont Consumer Protection Act (CPA). Plaintiffs were homeowners who purchased their home direct from the builder, D&L Homes by Design, LLC (D&L). D&L hired defendant to certify that the on-site mound sewage disposal system constructed for the home satisfied state permitting requirements. On April 19, 2005, the Vermont Agency of Natural Resources issued a Wastewater System and Potable Water Supply Permit for construction of the sewage disposal system on the property, subject to receiving a certification pursuant to 10 V.S.A 1973(e). On October 20, 2005, defendant's employee sent the certification required by the statute. On December 20, 2005, plaintiffs signed a purchase-and-sale agreement to purchase the home from D&L. Although the seller represented that the home and property had received all the necessary permits, plaintiffs never saw the certificate or the letter from the Agency stating that the certification requirement was satisfied. Sometime thereafter, plaintiffs hired an attorney in connection with the closing. On January 13, just prior, plaintiffs' attorney prepared a certificate of title that noted the wastewater and water supply permit. In February 2006, the sewage disposal system failed. In November 2008, plaintiffs hired defendant to investigate the system's failure because they knew defendant had inspected the system prior to their purchase. Defendant prepared a report stating that he had "completed the original" inspection in 2005 and found the system had been installed according to the permitted design. Plaintiffs received other opinions about the disposal system's failure both before and after hiring defendant to inspect the system. Plaintiffs filed a complaint in superior court alleging pecuniary losses from defendant's failure to properly inspect the sewage disposal system and subsequent misrepresentation about the construction of the system in the certification to the Agency. Upon review of the superior court decision, the Supreme Court found that the completion and filing of defendant's certificate was a prerequisite to D&L's ability to sell the home, the certificate was unrelated to the sale. The law required that it be sent only to the government agency that issued the permit. Furthermore, there was no allegation that D&L used the certificate as part of its sales pitch, and no allegation that defendant had any part in the sales. The standard for CPA liability required that a person be directly involved in the transaction that gave rise to the claimed liability. That standard was not met here. Accordingly, the Court affirmed the superior court's decision. View "Glassford v. Dufresne & Associates, P.C." on Justia Law

This appeal stemmed from a condominium construction project in Stratton. Owner-developer The Stratton Corporation and Intrawest Stratton Development Corporation (collectively "Stratton") sued the project's general contractor, Engelberth Construction, Inc., seeking to recover for alleged construction defects and faulty workmanship that resulted in water damage to the project. Engelberth filed third-party complaints for indemnification against its subcontractors. The trial court granted summary judgment to Engelberth on Stratton's claims, finding the claims barred by the statute of limitations. Given its summary judgment ruling, and without objection, the court dismissed Engelberth's third-party claims as moot. Engelberth later sought to amend the dismissal order to provide that the third-party claims were dismissed without prejudice. The court denied its request, and Engelberth appealed. Finding no reversible error, the Supreme Court affirmed. View "Stratton Corp. v. Engelberth Construction, Inc." on Justia Law

Defendant was charged with burglary and aggravated assault arising from an August 2012 incident in which he and a co-defendant entered a home in the Town of Enosburg, assaulted a resident, and stole prescription drugs. Defendant pled guilty to the charges in August 2013, and appeared for a contested sentencing hearing in February 2014. In addition to the burglary and assault, defendant was also appearing for sentencing on two unrelated convictions of grand larceny and simple assault. Defendant challenged his sentence of imprisonment for convictions of aggravated assault and burglary, asserting that the trial court improperly relied on evidence from his co-defendant's trial without providing defendant with notice and an opportunity to respond. After review, the Supreme Court agreed, vacated the sentence and remanded for resentencing. View "Vermont v. Delisle" on Justia Law

In a September 2013 order that disposed of father's motion to modify his child-support obligation, a magistrate found that father paid child support while mother also received a social security disability insurance (SSDI) derivative benefit on behalf of the parties' child through father's own SSDI benefit. The magistrate cited Supreme Court precedent in "Louko v. McDonald," (22 A.3d 433), for the proposition that father could credit the derivative benefit against his child-support obligation. A family court judge affirmed the magistrate's order, also citing "Louko." Mother appealed, arguing "Louko" did not apply. Finding no reversible error, the Supreme Court affirmed. View "Rathbone v. Corse" on Justia Law