Articles Posted in Civil Procedure

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Sung-Hee Chung (neighbor) appealed the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerned whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal. Applicants sought an Act 250 permit to build a 75’ by 100’ steel building for a commercial vehicle repair and body shop, a “minor application” under the Act. Finding that the Environmental Division had jurisdiction over the appeal, and that the District Commission had no authority to issue a second notice of a final permit, the Vermont Supreme Court concluded the court did not err in granting summary judgment in favor of applicants. View "In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant)" on Justia Law

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Sung-Hee Chung (neighbor) appealed the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerned whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal. Applicants sought an Act 250 permit to build a 75’ by 100’ steel building for a commercial vehicle repair and body shop, a “minor application” under the Act. Finding that the Environmental Division had jurisdiction over the appeal, and that the District Commission had no authority to issue a second notice of a final permit, the Vermont Supreme Court concluded the court did not err in granting summary judgment in favor of applicants. View "In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant)" on Justia Law

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Grievant Edward von Turkovich appealed a Vermont Labor Relations Board decision denying his motion to enlarge the time for him to file a notice of appeal. Grievant filed an employment grievance with the Board in January 2017. Grievant’s employer filed an answer and a motion to dismiss the next month. Grievant filed a memorandum in opposition to the motion to dismiss in late March 2017. On the same day, the attorney representing grievant (attorney) moved offices. Prior to the move, attorney’s law firm notified the United States Postal Service (USPS) that it should forward the firm’s mail to the new address, but attorney did not update the firm’s address with the Board, as required by Board rule. On June 13, 2017, the Board dismissed the grievance. That same day, the Board mailed the order dismissing the grievance to the address attorney had provided, which was attorney’s former address. The Board’s envelope read “return service requested,” which led the USPS to return the order to the Board rather than forwarding it to attorney. The USPS took thirty-four days to do so, returning the mail on July 17, 2017. It is unknown what caused the delay in returning the mail. When returning the mail, the USPS provided the Board with attorney’s forwarding address. The Board mailed the order to attorney a second time on July 18, 2017, this time to the current address, as provided by the USPS, and attorney received it on July 20, 2017. The Board also posted the decision on its website three days after it issued the order. The Board denied the request, concluding there was no showing of excusable neglect or good cause, and therefore there was no basis to permit an extension of time. Attorney conceded he made a mistake and could not show good cause. Therefore, the only issue on appeal was whether the Board erred in finding the failure to file was not due to excusable neglect. The Vermont Supreme Court affirmed the denial: "The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect." View "In re Grievance of Edward Von Turkovich" on Justia Law

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Grievant Edward von Turkovich appealed a Vermont Labor Relations Board decision denying his motion to enlarge the time for him to file a notice of appeal. Grievant filed an employment grievance with the Board in January 2017. Grievant’s employer filed an answer and a motion to dismiss the next month. Grievant filed a memorandum in opposition to the motion to dismiss in late March 2017. On the same day, the attorney representing grievant (attorney) moved offices. Prior to the move, attorney’s law firm notified the United States Postal Service (USPS) that it should forward the firm’s mail to the new address, but attorney did not update the firm’s address with the Board, as required by Board rule. On June 13, 2017, the Board dismissed the grievance. That same day, the Board mailed the order dismissing the grievance to the address attorney had provided, which was attorney’s former address. The Board’s envelope read “return service requested,” which led the USPS to return the order to the Board rather than forwarding it to attorney. The USPS took thirty-four days to do so, returning the mail on July 17, 2017. It is unknown what caused the delay in returning the mail. When returning the mail, the USPS provided the Board with attorney’s forwarding address. The Board mailed the order to attorney a second time on July 18, 2017, this time to the current address, as provided by the USPS, and attorney received it on July 20, 2017. The Board also posted the decision on its website three days after it issued the order. The Board denied the request, concluding there was no showing of excusable neglect or good cause, and therefore there was no basis to permit an extension of time. Attorney conceded he made a mistake and could not show good cause. Therefore, the only issue on appeal was whether the Board erred in finding the failure to file was not due to excusable neglect. The Vermont Supreme Court affirmed the denial: "The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect." View "In re Grievance of Edward Von Turkovich" on Justia Law

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Claimant Joanne Perrault appealed the Commissioner of Labor’s decision on summary judgment denying her workers’ compensation benefits. On appeal, claimant argued she was an employee of defendant Chittenden County Transportation Authority (CCTA) for the purposes of workers’ compensation and, therefore, was entitled to benefits. Claimant applied to be a driver in CCTA’s volunteer program in 2014. Once through the application process, a volunteer driver was governed by CCTA’s volunteer manual. This manual, in addition to explaining certain restrictions and requirements, also stated that the manual should not be understood to mean that any employment contract existed between CCTA and the volunteer driver. Drivers received money from CCTA based on the miles driven in a given period and calculated at the federal mileage rate. The CCTA manual referred to this monetary payment as reimbursement, and stated that CCTA would perform random checks to verify the accuracy of mileage submissions. This was the only monetary or other exchange between CCTA and drivers in the volunteer program. CCTA provided insurance on drivers’ vehicles on a secondary basis and encouraged drivers to carry more than the minimum required insurance and to name CCTA as an additional insured on their personal vehicle insurance policies. Drivers in the program were required to meet standards set by CCTA and were subject to certain restrictions, which were similar to the restrictions governing CCTA’s regular drivers. On December 1, 2015, claimant had an automobile accident. At the time of the accident, she was driving a CCTA rider to an appointment. Claimant sustained significant injuries in the accident, including a broken neck at the third and fourth vertebrae, a fractured spine, and broken ribs. She subsequently sought workers’ compensation benefits. The Vermont Supreme Court held that, because claimant did not receive wages, she could not be considered a statutory employee as that term was defined for the application of workers’ compensation. View "Perrault v. Chittenden County Transportation Authority" on Justia Law

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Claimant Joanne Perrault appealed the Commissioner of Labor’s decision on summary judgment denying her workers’ compensation benefits. On appeal, claimant argued she was an employee of defendant Chittenden County Transportation Authority (CCTA) for the purposes of workers’ compensation and, therefore, was entitled to benefits. Claimant applied to be a driver in CCTA’s volunteer program in 2014. Once through the application process, a volunteer driver was governed by CCTA’s volunteer manual. This manual, in addition to explaining certain restrictions and requirements, also stated that the manual should not be understood to mean that any employment contract existed between CCTA and the volunteer driver. Drivers received money from CCTA based on the miles driven in a given period and calculated at the federal mileage rate. The CCTA manual referred to this monetary payment as reimbursement, and stated that CCTA would perform random checks to verify the accuracy of mileage submissions. This was the only monetary or other exchange between CCTA and drivers in the volunteer program. CCTA provided insurance on drivers’ vehicles on a secondary basis and encouraged drivers to carry more than the minimum required insurance and to name CCTA as an additional insured on their personal vehicle insurance policies. Drivers in the program were required to meet standards set by CCTA and were subject to certain restrictions, which were similar to the restrictions governing CCTA’s regular drivers. On December 1, 2015, claimant had an automobile accident. At the time of the accident, she was driving a CCTA rider to an appointment. Claimant sustained significant injuries in the accident, including a broken neck at the third and fourth vertebrae, a fractured spine, and broken ribs. She subsequently sought workers’ compensation benefits. The Vermont Supreme Court held that, because claimant did not receive wages, she could not be considered a statutory employee as that term was defined for the application of workers’ compensation. View "Perrault v. Chittenden County Transportation Authority" on Justia Law

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In consolidated appeals, an executor of an estate sued the clinic and physician's assistant who treated the decedent for wrongful death. The trial court dismissed the case because plaintiff failed to file a certificate of merit, as was required by statute. The refiled case was dismissed as untimely. The executor appealed to the Vermont Supreme Court, which reviewed the trial court's dismissals and found that dismissal was proper in both cases. View "Quinlan v. Five-Town Health Alliance, Inc., dba Mountain Health Center" on Justia Law

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Appellant Renewable Energy Vermont (REV) asked the Vermont Supreme Court to review a Vermont Public Utility Commission order altering technology allocations in the standard-offer program for renewable energy projects. The Supreme Court determined what REV sought was an advisory opinion and therefore dismissed the appeal for lack of jurisdiction. View "In re Investigation into Programmatic Adjustments to the Standard-Offer Program (Renewable Energy Vermont, Appellant)" on Justia Law

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In June 2016, Federal National Mortgage Association (“bank”) filed an eviction action against defendant Marjorie Johnston for property located at 49 Pine Street in Rutland, Vermont. Following entry of a default judgment, the court found that service had not been properly completed and bank conceded to vacating the default judgment. Because the time for service had run, the court dismissed the case without prejudice in November 2016. In March 2017, bank filed this eviction action against defendants Johnston and Kamberleigh Johnston, alleging bank had purchased the property in a foreclosure sale and that defendants were the former mortgagors and current occupants of the property. In June 2017, bank filed a notice of voluntary dismissal, seeking to dismiss the case without prejudice. At that time, defendants had not filed an answer or otherwise appeared in the case. The dismissal was entered on June 23, 2017. On July 10, 2017, Marjorie filed a notice of appearance in the case and a motion to reconsider, arguing that the case should have been dismissed with prejudice due to the dismissal of the prior eviction action. Defendant also asserted that instead of allowing a voluntary dismissal, the court should dismiss the case with prejudice on mootness grounds because bank had sold the property prior to seeking a voluntary dismissal. The trial court denied the motion without a hearing. Defendants appealed. On appeal, defendants argued that because a prior eviction action filed by bank had been dismissed, this case should have been dismissed with prejudice. Defendants also contended the court erred in denying their motion to reconsider without a hearing and not dismissing the case on mootness grounds. The Vermont Supreme Court concluded the effect of the voluntary dismissal was not ripe until a third action was filed and affirmed. View "Federal National Mortgage Association v. Johnston" on Justia Law

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In the late 1970s and early 1980s, Richard Hayes developed a subdivision called Mountain View Estates on land jointly owned by him and his wife, Nadine Hayes, in the Town of Manchester. The subdivision grew to include forty residential homes, a school building, and a chiropractic clinic on forty-four lots. From the sale of the first lot in about 1981 until his death in 2004, Richard Hayes paid for maintenance and plowing of the roads that ran through the subdivision and maintained the subdivision’s sewer system and the portion of the water system that he and his wife still owned, without charge to the homeowners. Following the Hayes’ deaths in 2004, a probate proceeding was opened and the Hayes’ adult children, Jeffrey Hayes and Deborah Hayes McGraw, were appointed coadministrators of their estates. The co-administrators sent a letter to the homeowners in the subdivision stating that effective immediately, the homeowners would be responsible for maintaining and plowing the subdivision’s roads. The homeowners refused to assume responsibility for the road maintenance. The homeowners intervened in the probate proceedings of the Hayes’ estates to protect their rights regarding the subdivision. The estates appealed the trial court’s decision that the estates were obligated, based on an agreement between the developers and the homeowners, to continue to maintain and repair the roads and water and sewer systems until the town accepted the dedication of the infrastructure. The Vermont Supreme Court affirmed the court’s findings and conclusions, and remanded the matter to the trial court for remand to the probate division for further proceedings. View "Hayes v. Mountain View Estates Homeowners Association" on Justia Law