Articles Posted in Civil Procedure

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Plaintiff Ira Martel appealed the trial court’s decision granting summary judgment on his personal injury claims in favor of his employer, defendant Connor Contracting, Inc., and two co-employees, defendants Jason Clark and Stephen Connor. This case was about two separate exceptions to the exclusivity rule of workers’ compensation, the first of which applied when an employee is injured other than by accident, and the second of which applied when a person or entity could be held personally liable for an employee’s injuries. In August 2013, plaintiff was part of a four-person crew employed by Connor Contracting to perform roof repair work at the Montpelier Health Center. Defendant Jason Clark was the worksite foreperson, and defendant Stephen Connor was the treasurer of Connor Contracting and one of the company owners. While working on the project, plaintiff and the other members of the roofing crew used a personal-fall-arrest system (PFAS), which was safety equipment provided by Connor Contracting and required by the company’s safety program rules, the federal Occupational Safety and Health Administration, and the Vermont Occupational Safety and Health Administration (VOSHA). Plaintiff was completing the soffit work when he fell from the edge of the roof, hit the ground below, and was injured. He was not wearing a PFAS at the time he fell. The parties disputed whether a complete PFAS system was still at the project site on that day and available for plaintiff’s use. Connor Contracting disputes the removal of the PFAS and states that defendant Clark left two harnesses and lanyards at the project site. The Vermont Supreme Court held plaintiff’s action against Connor Contracting was barred by the exclusive remedy provision of Vermont’s Workers’ Compensation Act. Furthermore, plaintiff’s action against the individual defendants is barred because the acts that plaintiff alleges give rise to liability fell within the scope of a nondelegable corporate duty and defendants, therefore, cannot be held personally liable for plaintiff’s injuries. View "Martel v. Connor Contracting, Inc." on Justia Law

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The State appealed a Vermont Labor Relations Board decision interpreting a collective bargaining agreement between the State and the Vermont State Employees’ Association (VSEA). The question at issue was whether a change made to the agreement’s family-leave provisions in 1999 limited an employee’s right to use more than six weeks of accrued, paid sick leave while on family leave because of the employee’s own serious illness. The Board found that, although the agreement itself was ambiguous, extrinsic evidence showed that the parties did not intend to limit the use of sick leave. The State argued on appeal to the Vermont Supreme Court that the contract was not ambiguous and that the limitation on use of sick leave applies. Finding no reversible error, the Supreme Court affirmed the Board. View "In re Grievance of Kobe Kelley" on Justia Law

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In 2014, Michael Messier and Kay Bushman were involved in an auto accident. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. In 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman and her auto insurer, Travelers, for damages he claimed to have sustained in the accident. The claim against Bushman sounded in negligence, the claim against Travelers asserted breach of the Vermont Consumer Protection Act (CPA). The trial court granted a motion for judgment on the pleadings filed by Bushman and a motion to dismiss filed by Travelers. Messier appeals both decisions. The Vermont Supreme Court determined the motion filed by Bushman was one that challenged the sufficiency of service of process: the trial court, without holding an evidentiary hearing, found that Messier did not send a copy of the return of service on the Commissioner to Bushman as required by 12 V.S.A. 892(a). The Supreme Court reversed as to Bushman's motion because the issues concerning what was included in the mailing and whether the affidavit contained sufficient specificity to comply with section 892(a) were contested and needed to be resolved through factual determination by the trial court. Regarding Messier's claim against Travelers, the Supreme Court found his claim was brought under the CPA, but references unfair claims settlement practices which were part of Vermont Insurance Trade Practices Acts (ITPA). The Court found Messier did not purchase anything from Travelers- his only connection was that Bushman was insured by Travelers. Thus, Messier was not a consumer with respect to Bushman's Travelers insurance policy, and therefore had to CPA claim against them. The case was remanded for further proceedings with respect to the claim against Bushman; dismissal of the claim against Travelers was affirmed. View "Messier v. Bushman" on Justia Law

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Richard Joyce appealed the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) regarding Joyce's compliance with professional surveying standards. OPR opened an investigation into the complaint and, after review ultimately dismissed the complaint. Months later, OPR sent Joyce a letter stating that "[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration." OPR did not disclose the nature or origin of the new evidence. OPR sent Joyce a letter notifying him that "[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against [his surveying] license." A hearing on the charges was held in June 2017; OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce's right to file an appeal with an OPR appellate officer within thirty days of the entry of the order. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost. In his filing, Joyce's attorney reiterated that the appeal presented two legal issues, both raised in the attorney's notice of appeal, and that a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief. The Vermont Supreme Court found that because Joyce provided the appellate officer with neither a statement of questions nor a transcript, per OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below. The appellate officer correctly considered the factors relevant to the decision not to review Joyce's filings in a summary manner and to dismiss Joyce's appeal, specifically, the procedural irregularities in the appeal that essentially foreclosed appellate review. View "In re Richard H. Joyce" on Justia Law

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Plaintiff Wayne Clark appealed the grant of summary judgment on statute of limitations grounds to defendant Richard DiStefano in connection with Clark’s claim to collect on a promissory note. Clark argued the court erroneously applied a six-year statute of limitations for demand notes found in the Uniform Commercial Code (UCC), 9A V.S.A. § 3-118(b), rather than the fourteen-year statute of limitations for witnessed promissory notes, located in 12 V.S.A. 508. Finding no reversible error, the Vermont Supreme Court affirmed. View "Clark v. DiStefano" on Justia Law

Posted in: Civil Procedure

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Petitioner Michele Boulet appealed the trial court’s decision to dismiss her petition for modification of the guardianship of C.H. In 2017, petitioner petitioned for modification of the guardianship of C.H., a developmentally disabled adult who has had a guardian since 2009. C.H.’s first guardian, a member of her immediate family, was removed in 2015 after being substantiated for financial exploitation of C.H. The Commissioner of the Department of Disabilities, Aging, and Independent Living (DAIL) was subsequently appointed as C.H.’s guardian. Petitioner was a friend of C.H.’s family. Shortly after petitioner filed her petition for modification of guardianship, C.H. moved to dismiss through counsel to dismiss on grounds that petitioner did not have standing to petition the court for modification of C.H.’s guardianship. In October 2017, the trial court granted the motion to dismiss, deciding, in accordance with C.H.’s argument, that petitioner lacked standing to petition for modification of the guardianship. The trial court did not hold an evidentiary hearing on either the petition for modification or the motion to dismiss. Petitioner raised several arguments in favor of reinstating her petition; as one of her arguments resolved this appeal, the Vermont Supreme Court addressed it alone. The Supreme Court held that the trial court’s interpretation of the statute defining who has standing to petition for a modification of guardianship was inconsistent with the plain language and purpose of Vermont’s guardianship provisions. Accordingly, the Court reversed and remanded for further proceedings. View "In re Guardianship of C.H." on Justia Law

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Plaintiffs sought relief from the City of Rutland after suffering sewage backups in their homes. The trial court granted summary judgment to the City, concluding plaintiffs failed to adequately support their negligence, nuisance, trespass, and constitutional takings claims. Plaintiffs appealed, arguing they produced sufficient evidence to survive summary judgment. Agreeing with the trial court, the Vermont Supreme Court affirmed the trial court’s decision. View "Lorman v. City of Rutland" 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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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