This appeal stemmed from a decision of the Superior Court, Environmental Division in three consolidated dockets, "all of which carved a very long and circuitous path through the lower tribunals" before presented for the Supreme Court's review. At issue was the proposal of Lathrop Limited Partnership ("Lathrop") to establish a sand and gravel extraction operation on a parcel of land in Bristol. Neighbors of the project appealed the environmental court's decision to approve Lathrop's conditional use and Act 250 permit applications, and raised six claims of error: (1) the trial court erred in holding that sand and gravel extraction was permitted as a conditional use in the Town's Rural Agricultural (RA-2) and Mixed Use (MIX) zoning districts; (2) the trial court erred in holding that the operation would not create a pit within the meaning of section 526(2) of the Town's zoning bylaws; (3) erred in concluding that the court could review Lathrop's 2012 permit application de novo, without regard to the 2004 permit, and that the successive-application doctrine did not apply; (4) the court erred in relying on one-hour average noise levels and ignoring uncontested evidence of large increases in the number of high-decibel noise events in determining impact of traffic on neighbors; (5) erred in admitting and relying on acoustical-modeling software for predicting noise levels emitted by the project; and (6) erred in concluding that it had jurisdiction to review Lathrop's amended Act 250 permit application without a remand. The Supreme Court affirmed the environmental court's holdings that sand and gravel extraction was permitted as a conditional use in the RA-2 and MIX districts and that the acoustical-modeling testimony was admissible. The Supreme Court reversed holdings with respect to the creation of a pit under section 526(2), the successive-application doctrine, the impact of traffic noise on neighbors, and its jurisdiction to review Lathrop's amended Act 250 permit application. View "In re Application of Lathrop Limited Partnership I, II and III" on Justia Law

Defendant was convicted by jury of sexual assault and sexual assault of a vulnerable adult based on a single incident. Defendant was in his seventies at the time of the incident that led to the charges against him, and lived in the same residential facility for disabled adults and senior citizens as the complaining witness, a woman with intellectual disabilities. He argued on appeal of his convictions that the court erred by: (1) allowing a three-week separation period between jury selection and the commencement of his trial; (2) denying his motion to dismiss one of the convictions on double-jeopardy grounds; and (3) admitting the hearsay testimony of the complainant's brother under the excited-utterance exception. Upon review, the Supreme Court vacated the sexual assault conviction on double jeopardy-grounds, but rejected defendant's other arguments and affirmed his conviction of sexual assault of a vulnerable adult, as well as the sentence imposed for that conviction. View "Vermont v. Breed" on Justia Law

In June 2013, defendant was driving through downtown Bennington when he was stopped by a police officer. The officer stopped defendant after the officer saw a pine-tree-shaped air freshener hanging from the defendant's rearview mirror. As a result of observations the officer made in connection with the stop, and ensuing events, defendant was charged with driving over the legal limit and driving under the influence of alcohol. Defendant appealed the denial of his motion to suppress the fruits of the traffic stop based on the presence of that air freshener hanging from his rearview mirror, and his ensuing conviction. The State argued that hanging an air freshener from the rearview mirror violated 23 V.S.A. 1125. The defendant argued that hanging an air freshener from the rearview mirror did not violate that statute if the item did not materially obstruct the driver's vision. At the subsequent bench trial, the arresting officer testified that a driver of the car could "observe the road directly ahead," notwithstanding the presence of the air freshener. The issue this case presented for the Supreme Court's review centered on that statutory authority: whether 23 V.S.A. 1125 prohibited the hanging of any item on the inside of a windshield, including a pine-tree-shaped air freshener, without regard to whether the item materially obstructs the driver's vision. The Court concluded that the applicable statute did not per se prohibit the hanging of any item on the inside of a windshield without regard to whether it obstructs the driver's vision. However, because the officer's mistake of law on this point was objectively reasonable and thus justified the stop, the Court affirmed the judgment below. View "Vermont v. Hurley" on Justia Law

In 1996, claimant injured his left ankle during the scope of his employment as a game warden with the State of Vermont. On July 8, 1996, his treating orthopedic physician indicated in medical notes that claimant's injuries were consistent with someone who injured his ankle, it would take about a year to recover, and that claimant would be seen again "as needed." On May 15, approximately four months after claimant's injury and two months before his orthopedic physician wrote the July 8 note, the Department of Labor promulgated Workers' Compensation Rule 18(a), which in relevant part required employers/insurers to affirmatively determine whether an employee had a permanent impairment at the time the employee reached a medical end result. That determination was required to be made within 45 days of the filing of the notice of termination. Before the department's promulgation of Rule 18(a), a claimant could investigate a permanent impairment after reaching a medical end result by either directly obtaining an impairment rating from a qualified physician or asking the employer to arrange obtaining the rating; however, there was no express regulatory obligation on the part of the employer irrespective of any request from the injured employee to determine whether the employee had a permanent impairment. Claimant took no further action in this case until the fall of 2010, when he asked his employer's (the State of Vermont's) workers' compensation adjuster to schedule a permanency evaluation for his 1996 injury. In response, the adjuster scheduled an independent medical evaluation with a physician, who concluded that claimant had a one percent permanent impairment rating attributable to the 1996 injury. Claimant arranged for a second evaluation with a physician, who reached the same conclusion. In 2011, the State filed a form denying permanent benefits to claimant, asserting that the claim for permanent partial disability benefits was time barred because the six-year statute of limitations had expired. Claimant appealed two decisions in which the Commissioner of the Department of Labor concluded, as a matter of law, that the State did not waive its statute-of-limitations defense and was entitled to summary judgment based on that defense. Based on that evidence, the commissioner found that "as of July 1996 [claimant] knew, or should have known, that he had reached an end medical result, and that whatever deficits he was left with were likely permanent in nature." The Supreme Court, after review, agreed that the State did not waive the affirmative defense by agreeing to claimant's request for an impairment rating. The statute of limitations was not tolled because the employer did not determine the status of claimant's injury 45 after filing of the notice. The Supreme Court affirmed the commissioner's ruling that the claim for permanent partial disability benefits in this case was barred by the applicable statute of limitations. View "Smiley v. Vermont" on Justia Law

The issue this case presented for the Supreme Court's review centered on whether Act 250 jurisdiction extended to the siting and related construction proposed for the Vermont Air National Guard Base at the Burlington International Airport to accommodate the anticipated arrival of eighteen F-35A jets. Following a request for a jurisdictional opinion, the Environmental Division concluded that there was no Act 250 jurisdiction because the development served no state purpose and there was no material change to any existing permit. The requesting individuals appealed that decision, arguing that the proposed changes are development for a state purpose and subject to Act 250 review. Those individuals further contended that the project amounted to a substantial change to preexisting development on the Guard base, which required a permit, and a material change to an existing Act 250 permit, which required application for an amended permit. The Vermont Supreme Court concluded there was no Act 250 jurisdiction, and affirmed. View "In re Request for Jurisdictional Opinion re: Changes in Physical Structure and Use at Burlington International Airport for F-35A" on Justia Law

Claimant worked at the Vermont State Hospital as a psychiatric technician and ward aide. His duties involved lifting and dealing with patients who could be combative. Claimant suffered work-related injuries on three separate occasions in 1987, 1992, and 1997. All of these claims related to low back pain. Claimant underwent surgery after each of these injuries and returned to work. After the 1992 injury, claimant's surgeon rated him with a 10% permanent impairment to his spine, and the State began paying permanent partial disability benefits. There was no new rating for the 1997 injury. This appeal came after a dispute over an order based on a worker's compensation agreement. Claimant injured his back again in 2002. Claimant received an 8% whole-person impairment rating, with 6% of that rating referable to a previous injury. Based on this rating, claimant executed an Agreement for Permanent Partial Disability Compensation (Form 22) with the State, which the Commissioner of the Department of Labor then approved. Six years after the commissioner ordered the award, claimant underwent two more permanency evaluations with different doctors who both used a method that the first doctor had not used. Each of the subsequent evaluations resulted in higher whole-person impairment ratings before consideration of the portion attributable to any pre-existing impairment. Based on the higher ratings, claimant made a claim for additional benefits related to the 2002 injury. Claimant asserted that the award should be modified because his medical condition had worsened, or, alternatively, that the parties had based their Form 22 agreement upon a material mistake of fact. The commissioner ruled in the State's favor. Claimant then appealed to the superior court, which reversed the decision of the commissioner and awarded claimant additional benefits after a bench trial. After review, the Supreme Court concluded that the differences between the doctors' impairment ratings in 2010 and an impairment rating from 2003 were insufficient to serve as grounds for reopening the original order for compensation. The Court therefore concluded as a matter of law that failed to meet his burden of demonstrating a mistake of fact sufficient to require reformation of the approved Form 22. The Court vacated the decision of the superior court as to the issues on appeal. View "Marshall v. Vermont State Hospital" on Justia Law

Mother appealed a family division superior court decision terminating her parental rights with respect to her son, C.F. She argued that the decision, which was based in part on the family division's view that C.F. had an immediate need for permanency, was irrational in light of the court's contemporaneous decision not to terminate the parental rights of C.F.'s father.. Although C.F. originally filed the termination petition, which was later joined by the Department for Children and Families (DCF), and did not appeal the family division's decision to terminate mother's parental rights, he also filed a brief asking the Vermont Supreme Court to reverse that decision based on the court's failure to solicit the opinions of C.F.'s attorney and guardian ad litem (GAL) at the termination hearing. Finding no reversible errors, the Supreme Court affirmed. View "In re C.F." on Justia Law

Plaintiff Flex-A-Seal, Inc. appealed the dismissal of its complaint to renew a judgment against defendant Deborah Safford. In 2001, Flex-A-Seal sued Safford based on her alleged embezzlement of funds. The parties entered into a settlement agreement. In October 2002, the court issued a stipulated judgment order pursuant to the parties' agreement, granting judgment to Flex-A-Seal against Safford. Flex-A-Seal later filed a motion for trustee process against earnings, and in November 2004, the court issued two orders: (1) a bi-monthly wage attachment; and (2) a stipulated order stating the original judgment amount, the judgment amount with interest as of October 28, 2004, and providing for the suspension of post-judgment interest after October 28, 2004 as long as Safford maintained the same employment. The trial court found the complaint was barred by the statute of limitations. On appeal, Flex-A-Seal argued that: (1) the controlling judgment for statute-of-limitation purposes was issued in 2004, not 2002; (2) the statute of limitations was tolled by the terms of a 2002 settlement agreement between the parties and by Safford's acknowledgment and partial payment of her debt; and (3) Safford should have been equitably estopped from asserting the statute of limitations as a defense. After review, the Supreme Court reversed the trial court's decision: "[b]etween 1797 and 1972, the law provided that 'all actions of debt or scire facias on judgment' must be brought 'within eight years next after the rendition of such judgment, and not after.'" The statute was modified in 1972 to read: "Actions on judgments and actions for the renewal or revival of judgments shall be brought within eight years after the rendition of the judgment, and not after." The statute was amended again in 2010: "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after." The 2010 modification followed Supreme Court precedent, in which the Court concluded that, under the common law and 12 V.S.A. section 506, a party must file "a new and independent suit commenced in accordance with [Vermont Rule of Civil Procedure] 3" to renew a judgment, and that judgments could not be renewed by motion. View "Flex-A-Seal, Inc. v. Safford" on Justia Law

Virginia Newman died in early 2014 at the age of ninety-eight. She created a trust in the mid-1980s after the death of her third husband. Initially, she was the sole trustee, but in 1989 she resigned, and her son Roger Lamson, Jr. was appointed sole trustee. From 1992 until 2001, Roger served as co-trustee, with Virginia and Bank of Boston. In 2001, Roger was removed as co-trustee. In 2003, the trust was amended, with Virginia, Roger, son Frank Lamson, and Bank of America serving as co-trustees. In January 2012, Roger filed a petition for accounting because he was suspicious that Frank had been using trust funds for his own benefit. In July, Roger filed a complaint for breach of trust against Frank. In February 2013, Frank petitioned to remove Roger as co-trustee of the trust. The probate division issued an order that: (1) removed Roger as co-trustee; (2) accepted Frank's resignation as co-trustee; (3) removed Virginia as co-trustee based on its contemporaneous order appointing a guardian for her; (4) accepted Bank of America's resignation as trustee; and (5) appointed Trust Company of Vermont (TCV) as sole trustee in accordance with TCV's conditions that Roger and Frank be removed as co-trustees, that neither of them have a power of attorney over Virginia's financial affairs, that TCV not be responsible for any acts or omissions of any predecessor trustee, and that TCV not have any duty to inquire into the administration or accounting of any predecessor trustee. Roger appealed the order to the civil division. The probate division lifted the automatic stay of its decision removing Roger as co-trustee, thereby making his removal effective immediately. The following day, Roger appealed the decision to lift the stay. The civil division ordered the completion of discovery in the trust case, and ruled that Roger's appeal of the probate division's order lifting the stay did not serve to create a new stay but provided Roger the opportunity to request a hearing on whether the automatic stay should have been reinstated. Meanwhile, in the breach-of-trust case that remained with the probate division, Roger obtained access to the last of the trust accounts and had an accountant prepare a report. In August 2013, Frank moved to either substitute Virginia's guardian as the petitioner or dismiss the case based on Roger's lack of standing. The probate division ruled that: (1) the issue of Roger's standing with respect to his petition for an accounting was moot because he had obtained all of the information necessary for an accounting; (2) Roger, as a former co-trustee and a remainder beneficiary to a revocable trust, had no standing to pursue his breach-of-trust action; (3) Virginia's guardian, Beth Barrett, was authorized to pursue the pending breach-of-trust action; and (4) that action would be dismissed if the guardian did not substitute herself as the petitioner in the action within the next thirty days. In so ruling, the probate division noted that Roger had "essentially conceded" that he did not have standing to pursue the breach-of-trust action. On appeal of the civil division's decision to the Supreme Court, Roger argued the court erred in granting Frank summary judgment based on Roger's lack of standing because: (1) the civil division had to resolve his appeal of the probate division's decision to remove him as co-trustee before finding that he lacked standing to pursue the breach-of-trust action; (2) its decision impaired his ability as co-trustee to fulfill his duties to safeguard the trust; and (3) he was not afforded an adequate opportunity to conduct discovery. The Supreme Court affirmed, "notwithstanding Roger's protestations to the contrary, his appeal is moot. 'A case becomes moot if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. A case that originally presented an actual controversy may become moot if the facts or circumstances of the case change such that we can no longer grant effective relief.' That is what occurred here. When Virginia died, the parties agreed that Roger could pursue, as a beneficiary, his breach-of-trust action against Frank and that is what he is doing in a separate case." View "In re Trust of Virginia B. Newman" on Justia Law

This case stemmed from a dispute over damage to a leased commercial space. The case was tried before a jury, which awarded plaintiff-landlord David Walsh, just under $11,000 in damages attributable to defendant-tenant Frank Cluba. Following the jury verdict, the trial court awarded Walsh over $44,000 in attorney's fees. Cluba appealed, arguing that the court erred by allowing Walsh to testify on the reasonableness of repair work done after Cluba vacated the property and by awarding Walsh an unreasonable amount of attorney's fees under the circumstances. Walsh cross-appealed, arguing that the court erred by dismissing his claims against defendant Good Stuff, Inc., the business that Cluba and his partner incorporated shortly after Cluba signed the initial lease of the subject property. Finding no reversible error, the Supreme Court affirmed. View "Walsh v. Cluba" on Justia Law