Defendant Roger Perry appealed the trial court's issuance of a mittimus ordering the Department of Corrections (DOC) not to give defendant credit for time served in connection with prior convictions. The State did not challenge defendant's claim that the mittimus violated the parties' plea agreement and created an illegal sentence, but argued that because defendant has completed the time-to-serve portion of his sentence, this appeal was moot. The Supreme Court reversed, concluding that the appeal was not moot because defendant was still serving the challenged sentence, and that the amended mittimus violated Vermont's sentencing statute. View "Vermont v. Perry" on Justia Law

This case centered on a disputed permit for a wastewater system and potable water supply granted to applicants David and Martha Musto for a home on Lake Bomoseen. Next-door neighbor Carolyn Hignite appealed the environmental court's decision to deny her request to revoke the permit issued to applicants in 2009, and to dismiss her direct appeal of the permit. Applicants cross-appealed the environmental court's holding that neighbor had standing to appeal in either instance. Along with her brothers, Hignite was part owner of a lake property that has been in their family for sixty-two years. Applicants' property is a .38-acre lot on the western shore of the lake, which contained a single-story seasonal camp of about 960 square feet. In 2009, applicants submitted a permit application to the Agency of Natural Resources (ANR) to replace the camp's septic system and on-site water supply. On the permit application, applicants described the project as the "reconstruction of a 3 bedroom year-round single use family residence using a new wastewater disposal system and drilled bedrock water supply well." ANR issued the requested permit to applicants on March 30, 2009. In August 2009, Hignite filed a petition with ANR to revoke the permit, claiming that applicants submitted false or misleading information on the permit application regarding the number of bedrooms in the camp. ANR held a hearing in May 2010, and denied neighbor's petition to revoke the permit. Hignite subsequently appealed the permit to the environmental court in 2010, over a year after the permit was issued to applicants. Hignite also appealed ANR's denial of revocation in 2013. The environmental court reviewed both cases de novo but did not conduct a new hearing, instead basing its review on exhibits and testimony from the ANR hearing, as the parties stipulated. Hignite appealed the court's decision on both dockets. Finding no reversible error, the Supreme Court affirmed the court's holding in both of the neighbor's appeals. View "In re Musto Wastewater System" on Justia Law

Defendant appealed a superior court order concluding that defendant violated 13 V.S.A. 3701(c) by intentionally knocking down a tree that belonged to plaintiff and trespassed on plaintiff’s land, and granted plaintiff $1 in damages plus attorney’s fees and costs. On appeal, defendant argued: (1) that plaintiff failed to demonstrate that defendant violated the statute; (2) that nominal damages did not support an award of attorney’s fees; and (3) that the court abused its discretion in awarding attorney’s fees of $22,406 based on $1 of actual damages. Finding no reversible error, the Supreme Court affirmed. View "Evans v. Cote" on Justia Law

Petitioner's state-appointed counsel filed an untimely notice of appeal of the trial court's denial of petitioner's first post-conviction relief (PCR) petition. It was uncontested that by failing to timely file a notice of appeal, counsel performed well below any recognized standard of care. The Supreme Court has held previously that where counsel negligently fails to perfect an appeal, the defendant has not knowingly and intelligently waived the appeal "there is per se ineffective counsel." The question this case presented for the Supreme Court's review was whether petitioner had a remedy for his counsel's failure to perfect his PCR appeal. Petitioner argued that his first PCR should be reinstated because the statutory right to PCR counsel includes a minimal level of competence, which was plainly violated in this case. The State supported petitioner's request to reverse the trial court and reinstate the first appeal. "Because this case presents an egregious example of injustice," the Supreme Court reversed the dismissal and remanded the case to the superior court with directions that petitioner's initial PCR be reinstated with a renewed opportunity for petitioner to file a notice of appeal. View "In re Babson" on Justia Law

Cases consolidated cases for appellate review stemmed from alleged injuries suffered by plaintiff Faye Ainsworth while she was at defendant Charles Chandler’s business, Chandler Electric. Plaintiff sued claiming she was injured when she tripped on a coil of wires that had been placed in the stairway. Defendant sued his insurer, Concord Insurance Group, arguing that insurer had wrongfully and in bad faith failed to provide adequate coverage for the claim. The insurer filed a counterclaim seeking a declaration of noncoverage. The trial court granted summary judgment to defendant, concluding that plaintiff was a social guest of defendant at the time of her visit, that the duty of care defendant owed her was the lesser duty applicable to licensees under Vermont law (as opposed to that which is owed to business invitees), and that defendant did not breach this duty. The trial court also granted summary judgment to the insurer, on the basis that the underlying personal injury action had been dismissed and therefore no coverage was owed. Plaintiff and defendant both appealed, contesting the court’s order granting summary judgment in favor of defendant. Defendant contested the order granting summary judgment in favor of insurer. Upon review of the cases, the Supreme Court affirmed with respect to defendant’s motion to disqualify the trial judge, but reversed with respect to plaintiff’s suit and reversed and remanded for further proceedings with respect to defendant’s claim against the insurer and the insurer’s counterclaim for declaration of noncoverage. View "Ainsworth v. Chandler" on Justia Law

The issue before the Supreme Court in this case stemmed from a dispute over title to an old railroad bed adjacent to defendants' property that plaintiff purchased with the goal of creating a public recreational trail. Defendants challenged the trial court's determination that plaintiff acquired a valid fee simple interest in the property, asserting that title either reverted to them when the railroad abandoned the line or vested in them through adverse possession. Finding no reversible error, the Supreme Court affirmed the trial court's determination. View "Old Railroad Bed, LLC v. Marcus, et al." on Justia Law

Plaintiff Sandra J. Murphy (as personal representative and administrator of the Estate of Christopher Murphy) appealed a superior court decision that vacated a jury verdict in her favor and entered judgment as a matter of law for defendant Sentry Insurance. The decedent died after a forklift he was operating for his employer, Pete's RV Center, tipped over. At the time of the accident, the decedent was operating a forklift equipped with an unapproved towing attachment, and using the forklift to tow a fifth-wheel camper. In its capacity as Pete's general liability insurer, Sentry had performed a safety survey at Pete's in April 2002. Plaintiff sued Sentry, alleging in relevant part that Sentry was negligent in performing the safety survey because it failed to identify and warn of the dangers of using forklifts with unapproved towing attachments. Plaintiff contended on appeal that there was sufficient evidence to establish Sentry's liability for her husband's workplace death under the Restatement (Second) of Torts section 324A based on a negligent inspection theory. Plaintiff also argued that the court erred in awarding costs to Sentry. Upon review, the Supreme Court concluded that, assuming the risk of physical harm associated with the use of unapproved forklift attachments was present at the time of Sentry's inspection, nothing Sentry did increased the risk of physical harm to decedent from such attachments. The Court therefore agreed with the trial court that Sentry's liability could not be premised on section 324A(a). The Court found plaintiff's arguments with regard to whether the jury reasonably could conclude that through its inspection, Sentry assumed a portion of Pete's duty to provide a safe workplace to its employees, as unpersuasive. The Court affirmed the superior court's decision.View "Murphy v. Sentry Insurance" on Justia Law

Appellants Amherst Realty, LLC, Richard Madowitz, and the personal representatives of the Estate of Douglas Kohl appealed a superior court's grant of summary judgment to The Woods at Killington Owners’ Association on Amherst Realty’s claim of breach of contract based on the Association’s alleged interference with its development rights at The Woods at Killington. The Association cross-appealed the superior court’s decision granting summary judgment to Amherst Realty on the Association’s consumer fraud counterclaim. This controversy the center of this case concerned the consequences of the attempt and ultimate failure to build 40 units at The Woods. But finding no reason to reverse the superior court on either parties' claims, the Supreme Court affirmed. View "Amherst Realty, LLC v. The Woods at Killington Owners’ Association, Inc." on Justia Law

Plaintiff Nicholas Bonnano appealed the superior court’s grant of summary judgment against him and in favor of his employer, Verizon, and Verizon’s third-party claims administrator, Sedgwick Claims Management. Plaintiff’s claims stemmed from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff argued that the trial court erred because there was a dispute of material fact as to the voluntariness of employer’s temporary total disability (TTD) payments made to plaintiff after the TTD termination date indicated in the settlement. Finding no reversible error, the Supreme Court affirmed the superior court in all respects. View "Bonanno v. Verizon Business Network Systems" on Justia Law

The issue before the Supreme Court in this appeal stems from a final judgment of divorce: whether, as husband contended, the trial court erred in its division of the marital estate by including an offset for the disparity in value between the parties' projected Social Security retirement benefits. The parties did not agree on the assets to be included in the marital estate. Wife submitted a list of assets with a total value of $1,152,325.86, including $88,158 identified as the difference between the present value of husband's and wife's projected Social Security benefits. The value was determined by wife's accountant and credited toward husband's suggested share of the marital estate, with a corresponding offset in value for wife. Wife proposed that she be awarded either sixty percent of the value of the entire estate plus spousal maintenance, or eighty percent without maintenance. Husband submitted a separate list of marital assets which totaled $978,504 and did not include the Social Security differential. Husband proposed an award to wife of sixty percent of the value of the estate plus rehabilitative maintenance for a period of several years. In its written ruling, the trial court found that wife's proposed property division was "a reasonable one" and gave her the option of choosing either the eighty/twenty division that she had proposed or an award of sixty percent plus maintenance until she reached the age of sixty-seven. Wife subsequently opted for the higher percentage of the marital estate without the maintenance, and the trial court entered a final judgment consistent with that choice and with wife's proposed division. Husband's two subsequent motions to reconsider were denied. After its review, the Supreme Court concluded the trial court erred in treating the parties' respective anticipated Social Security benefits as assets of the marital estate, reducing them to a purported present value, allocating the differential to husband, and awarding wife a direct offset on account. "Omitting the value of these benefits only marginally affects the marital estate, valued at over $1 million, and we therefore remand for the trial court to recalculate the award pursuant to the original percentage division of eighty percent for wife and twenty percent for husband."View "Manning v. Schultz" on Justia Law