In 2007, plaintiffs Sylvia and Stanley Stroup sued defendants Peter Doran and Peter Doran Landscape Design, LLC for breach of contract, fraud, and consumer fraud after defendants failed to perform landscaping for plaintiffs. Plaintiffs obtained a judgment against defendants. Defendants failed to pay the judgment. Plaintiffs obtained a writ of execution, and the court approved plaintiffs’ motion for trustee process to attach funds owned by defendants and held by Brattleboro Savings and Loan Association (BSL). BSL disclosed to plaintiffs that it held a balance of $2,853.05 in a checking account titled in the name of one of the defendants. A few days later, the parties stipulated that BSL would release $750 to plaintiffs, and that BSL would then be discharged as a trustee and defendant’s account would be free of any lien or charge benefitting plaintiffs. Defendants further agreed to pay $3,500 to plaintiffs before January 31, 2008. BSL paid plaintiffs $750. Plaintiffs claim that defendants never paid the remainder of their debt. In 2013, plaintiffs served BSL with another trustee summons. BSL did not reply within thirty days, and on August 27 plaintiffs moved for default against BSL and entry of judgment against it as trustee for $24,155.12, the balance due under the judgment. The court ordered the clerk to schedule a hearing on plaintiffs’ motion, and directed that a copy of plaintiffs’ motion and the notice of hearing be served on BSL. On September 16, BSL filed a trustee disclosure indicating that it did not have any of defendants’ property in its possession. The court subsequently entered an order denying plaintiffs’ motion for default judgment against BSL. The court stated that “[a]lthough Trustee failed to make a timely disclosure, its disclosure now made in response to Plaintiff[s’] motion for default shows that it holds no assets for the benefit of Defendant[s]. Default judgment under these circumstances would be inequitable.” Plaintiffs appealed. Plaintiffs argued that the trial court erred in denying their motion for default because applicable Vermont law makes default mandatory when a trustee fails to serve a disclosure within thirty days. Plaintiffs did not contest the information contained in the trustee’s disclosure form or request an evidentiary hearing below. See V.R.C.P. 4.2(g) (stating that party who intends to contest information contained in trustee’s disclosure is entitled to evidentiary hearing upon written request). Nor do they contest the information on appeal. Their sole argument before this Court is that default was mandatory under 12 V.S.A. § 3062 and V.R.C.P. 4.2(f). Finding no reversible error, the Supreme Court affirmed. View "Stroup v. Doran" on Justia Law

On the evening of September 9, 2009, the complainant was walking home along Colchester Avenue in Burlington when an unknown man attacked her and tried to force her into the cab of a pickup truck that was parked alongside the road. He punched her repeatedly in the face and she fell to the ground. He pinned her to the ground with his knee. She started screaming. At one point he shoved his finger into her mouth and she bit him. He got up and she managed to escape. She ran to a nearby house and rang doorbells until someone let her in. The assailant drove off in a truck. Police and an ambulance arrived soon afterwards. Several people witnessed the event and offered descriptions of the assailant and the truck to police. While the assailant’s truck was parked on the side of the road, a Chittenden County Transportation Authority (CCTA) bus passed by. Two video cameras attached to the bus captured images of the assailant’s truck at the location identified by the complainant. Defendant Harold Porter, Jr. was arrested and charged with attempted kidnapping, aggravated assault, and unlawful restraint. The latter two charges were eventually dismissed by the State. Defendant’s first trial in July 2011 ended in a mistrial when the jury was unable to reach a verdict. A second jury trial in March 2012 resulted in a guilty verdict. Defendant was sentenced to serve thirty years to life. He argued on appeal that the trial court erred: (1) in refusing to grant a motion for a new trial because the prosecution failed to disclose important expert testimony; (2) in admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; (3) in admitting eyewitness identification testimony; (4) in failing to dismiss the case for failure to preserve and test potentially exculpatory evidence; and (5) in excluding the testimony of defendant’s expert on police procedures. Upon review of the trial court record, the Supreme Court found that the investigating officers had no basis upon which to offer admissible testimony that the information they received from some of the witnesses met the personal knowledge requirement of Rule of Evidence 602. Consequently, admission of the officers' testimony was prejudicial to defendant. The Supreme Court reversed the conviction on this ground. View "Vermont v. Porter, Jr." on Justia Law

Defendant Yetha Lumumba is a native of the Democratic Republic of Congo. He immigrated to the United States in 2004, where he became a legal permanent resident. In 2012, defendant, then a student at the University of Vermont (UVM), was convicted of sexual assault of a fellow student. In June of 2010, defendant and the victim, J.B, met up for a bike ride to a Burlington beach which ended in sex that J.B. felt was nonconsensual. Several months later, J.B. reported the incident and defendant was subsequently charged with sexual assault against J.B. After a three-day jury trial, defendant was found guilty and received a sentence of eight years to life in prison. Defendant appealed his conviction, arguing that the trial court erred: (1) in allowing a clinical psychologist to give expert testimony about common reactions and behaviors of rape victims in between J.B.’s testimony and the defense’s cross-examination of J.B.; (2) in not permitting defense counsel to have J.B. look over transcripts of her prior testimony during cross-examination to determine whether she had made a prior inconsistent statement; and (3) in admitting hearsay testimony from a UVM police officer who met with J.B. Defendant also challenged his sentence, arguing that his immigration status prevented him from meeting Vermont’s statutory requirement for sex-offender counseling prior to release from incarceration, thereby effectively sentencing him to a disproportionately harsh punishment of life in prison without the possibility of parole in violation of the Eighth Amendment. Upon review of the matter, the Supreme Court affirmed the trial court's evidentiary rulings, but reversed on sentencing. The trial court did not have an obligation to reduce the sentence awarded in consideration of imminent deportation upon release from prison, but it did have an obligation under Vermont’s individualized sentencing process to examine defendant’s case and to consider the consequences of his particular situation in fashioning a sentence. Stating that it did not care to understand these consequences was a failure of this obligation and an abuse of discretion; awarding a sentence range of which the only evidence presented at sentencing indicated was not likely to be a range at all required more from the court in the way of findings than the court provided. Because the Supreme Court reversed on these grounds, it did not reach defendant’s Eighth Amendment claim. View "Vermont v. Lumumba" on Justia Law

Defendant Tiffanie Felix appealed her conviction for the sale or delivery of 200 milligrams or more of heroin following a jury trial. She argued that the trial court erred in refusing to allow her to impeach the credibility of the State’s key witness in various ways, depriving defendant of a fair trial. The Supreme Court agreed and reversed and remanded this case for a new trial. View "Vermont v. Felix" on Justia Law

Defendant Patrick Bostwick was convicted of lewd and lascivious conduct with a child and sentenced to three to fifteen years, all suspended but six months. Defendant's probation order contained "special sex offender conditions": "You will not live in an apartment complex that allows children, in neighborhoods with large numbers of children, or in neighborhoods near parks, schools, playgrounds, etc, unless directed otherwise by your Supervising Officer"; and "You shall reside where your Supervising Officer directs. You shall not change your residence without the prior written permission of your Supervising Officer." While defendant was still incarcerated, the State filed a probation violation complaint, claiming that defendant had violated the condition stating: "You shall reside where your Supervising Officer directs." The State claimed that defendant had violated this condition because he did not submit a residence for his probation officer's approval prior to his release and therefore he would be homeless upon his release. The court dismissed the complaint for "impossibility of performance." Defendant was subsequently released and, with approval from his probation officer, resided at a few temporary addresses in succession. In its analysis, the court found that defendant did not look for housing for approximately one month, and that defendant "certainly should have known that abandoning his efforts to find housing for several days . . . was not in compliance with his obligations under the terms of his probation." Defendant argued that the requirements that he make housing search calls every day and find housing by a certain date were not part of his court-ordered probation conditions. Therefore, defendant claimed that his probation officer lacked authority to impose those requirements on him and that defendant had no notice of the consequences of failing to fulfill those requirements. Defendant further argued that he had no meaningful opportunity to find housing, that it was in fact impossible for him to find housing, and that his failure to find housing was not willful. Because the Supreme Court agreed with defendant that he did not violate any of his court-ordered conditions of release, it did not reach the remainder of his other arguments made on appeal. The Court held that defendant's conduct was not inconsistent with the plain language of his probation conditions, and reversed. View "Vermont v. Bostwick" on Justia Law

Defendant Owen Cornell was convicted by jury of lewd and lascivious conduct with a twelve-year-old child. Defendant argued on appeal: (1) that the boilerplate "sex offender conditions" imposed by the trial court were not sufficiently individualized to comply with statutory sentencing requirements; (2) that the vague and ambiguous wording of some of the conditions violated defendant’s due process rights and impermissibly delegated the court’s authority to his probation officer; (3) and that several of the conditions were unduly restrictive and invasive in violation of defendant’s substantive due process rights. Defendant raised these issues in response to a limited remand from the Supreme Court, but the trial court did not address them because its authority on remand, as requested by the parties, was limited to clarifying the conditions it had already imposed. In accordance with the Supreme Court’s September 2013 entry order extending the trial court’s authority on remand to resolve defendant’s challenges, the case was remanded back to the trial court for further proceedings on defendant’s motion to reconsider the probation conditions. View "Vermont v. Cornell" on Justia Law

Taxpayer Ugo Quazzo appealed a superior court decision to uphold a determination by the Commissioner of Taxes that he failed to prove a change of domicile for purposes of obtaining an income-sensitive homestead property tax adjustment on his Vermont residence for the years 2007 through 2009. He argued that the Commissioner erred in treating this case as one involving a change of domicile, rather than maintenance of domicile, so that taxpayer had the burden of proving by clear and convincing evidence that he had changed domicile to Vermont, even though he had declared (and the Department of Taxes did not challenge) his Vermont domicile years earlier. He also argued that the Commissioner’s findings are insufficient to support her conclusions. Finding no reversible error, the Supreme Court affirmed. View "Quazzo v. Department of Taxes" on Justia Law

Plaintiff Progressive Casualty Insurance Company insured the vehicle involved in the accident at issue in this case. Given the number of victims, the policy’s liability coverage did not fully compensate at least one of the injured passengers. The parties disputed whether the injured passenger was therefore entitled to UIM benefits under Progressive’s policy. Progressive argued that coverage was barred by certain exclusions in its policy. The trial court found Progressive’s exclusions unenforceable as inconsistent with the definition of an "underinsured vehicle" set forth in 23 V.S.A. 941(f). Progressive appealed, arguing that its exclusions should be enforced, and that it should not have to provide both liability and UIM benefits to the injured passenger. The Supreme Court agreed with Progressive after its review of the case, and therefore, reversed the trial court’s decision. View "Progressive Casuality Insurance Co. v. MMG Insurnace Co." on Justia Law

The State of Vermont appealed the superior court’s reversal of the Vermont Parole Board’s decision to revoke Edwin Rodriguez’s parole. On appeal, the State argued: (1) the court erred in weighing the evidence and assessing witness credibility when reviewing the parole board’s decision, and (2) erred in concluding that the parole violation was not established by a preponderance of the evidence. After review of the Parole Board record, the Supreme Court found no reversible error and affirmed the decision. View "Rodriguez v. Vermont Parole Board" on Justia Law

The mother in this case appealed the family division's decision to place sole legal parental rights and responsibilities for the parties' two daughters with the father. She also appealed the family division's award of a share of the equity in the marital home to father. Finding no abuse of discretion or other reversible error, the Supreme Court affirmed the family division's decision. View "Paine v. Buffa" on Justia Law