Articles Posted in Civil Procedure

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Allco Renewable Energy Ltd. (Allco) appealed the denial of its motion to intervene, and its renewed motion to intervene, in a certificate-of-public-good (CPG) proceeding for a solar electric generation facility. The applicant, GMPSolar–Richmond, LLC (GMPSR), was an affiliate of Green Mountain Power Corp. (GMP), an electricity utility, owned by GMP and an investor. Allco was developing a number of solar electric generation facilities in Vermont. A hearing officer denied Allco’s request for intervention as of right and permissive intervention; the Public Service Board (PSB) also denied the motion for reconsideration. On appeal to the Vermont Supreme Court, Allco argued PSB used the wrong framework in reviewing its request and incorrectly applied the intervention criteria. Finding no reversible error, however, the Supreme Court affirmed the PSB. View "In re Petition of GMPSolar-Richmond, LLC" on Justia Law

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Acting pro se, Mother appealed a trial court’s denial of her motion to modify parental rights and responsibilities for son L.C. Through their actions, father and stepmother deprived mother of any contact with L.C. for many years and “destroyed the child’s formerly good relationship with mother.” The trial court found father and stepmother solely responsible for the trauma caused by this alienation; despite this egregious behavior, the trial court declined to modify parental rights and responsibilities for the child. The Vermont Supreme Court upheld this decision on appeal, “not because the father and stepmother are correct in their accusations, or to reward or endorse the course of conduct in which they have engaged, but because the trial court’s judgment regarding the best-interest criteria was factually based and legally correct.” The Supreme Court emphasized that mother was not without recourse should father and stepmother continue to interfere with her attempts at reunification or should they defy the trial court’s orders. In the pendency of a 2015 appeal, father and stepmother continued to wage war against mother. In October 2015, mother filed the emergency motion to modify at issue here, arguing father continued to deliberately and repeatedly undermine and defy the court’s orders. The trial court agreed. At a September 2016 hearing, the court concluded that father’s serious and blatant violations of its prior order constituted a real, substantial, and unanticipated change of circumstances. The court explained, it had expressly prohibited the parties from publishing L.C.’s medical records to any third person, yet stepmother had provided L.C.’s private medical information (a trauma therapy report) to the media, which father had at least “tacitly condoned.” Father’s attorney also submitted this same report as an exhibit to a motion to stay father’s deposition in a separate civil suit that mother had filed. The court observed that father did not repudiate his attorney’s actions or attempt to rescind this filing. Regarding mother’s emergency motion, although the trial court found that mother had shown a real, substantial, and unanticipated change in circumstances, it concluded that transferring custody to mother at this juncture was not in L.C.’s best interests. Mother argued the court’s findings did not support its conclusion, particularly given its determination that father and stepmother were not credible witnesses. The Vermont Supreme Court concluded the trial court acted within its discretion in assessing L.C.’s best interests and therefore affirmed its decision. The Court emphasized that the trial court set a clear benchmark for father and stepmother’s behavior, and any further attempts at alienation may well affect the best-interest analysis and warrant a change in custody. View "Knutsen v. Cegalis (2017 VT 62)" on Justia Law

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At issue in this appeal was whether a family court could, after concluding that a custodial parent’s relocation constitutes an unanticipated change in circumstances, maintain physical rights and responsibilities with that parent but then decline to modify parent-child contact, effectively barring the custodial parent from moving because it determined that the move was not in the child’s best interests. Custodial mother appealed the family court’s denial of her motion to modify parent-child contact to facilitate her relocation with the child. The Vermont Supreme Court concluded the family court applied the wrong framework in evaluating mother’s motion, and reversed and remanded for further proceedings. View "Quinones v. Bouffard" on Justia Law

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In May 2008, the Town of Granville established an Ancient Roads Committee and Process for identifying “ancient roads,” all roads that were at one time established as public highways and had not been officially discontinued. In August 2009, the Committee recommended that certain roads, including Sabin Homestead Road, be added to the Town Highway Map. Sabin Homestead Road crosses defendant Joseph Loprete’s land for about 100 feet. In December 2009, after notice to defendant and several public hearings, the selectboard adopted the Committee’s revised recommendation to add Sabin Homestead Road back to the Town Highway Map. The road appeared on the Vermont Agency of Transportation’s official Town Highway Map. In late 2012, defendant blocked Sabin Homestead Road by putting a large storage container in the right-of-way. He refused to move the container, even after the selectboard asked him to do so. Plaintiffs then filed a declaratory judgment action asking the court to declare Sabin Homestead Road an existing town highway and public road that was properly established in 1850 following the statutory procedures required at that time. The Town moved for summary judgment, arguing that the undisputed facts established that in 1850 the selectboard took official action to lay out the road and that they created and recorded a survey. The trial court denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The parties subsequently agreed that the court could decide this question based on undisputed facts and they filed cross-motions for summary judgment. The parties agreed that no certificate of opening could be found. Defendant argued that this disposed of the case. However, the court concluded that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town. Defendant argued on appeal to the Vermont Supreme Court that the Town was required, and failed, to produce sufficient evidence that the Town certified the road as open for public travel in 1850. After review, the Supreme Court concluded the Town met its burden of proof, and it was entitled to summary judgment in its favor. View "Town of Granville v. Loprete" on Justia Law

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After a bench trial, the trial court concluded that defendant attorney’s failure to adequately inform plaintiff Hannah Sachs of the risks of delay in filing a parentage action “negligently fell short of the standard of reasonably competent legal representation.” Despite the court’s conclusion that defendant breached her professional duty of care, the trial court determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant’s negligent advice. On appeal, plaintiff challenges the court’s legal conclusions and contends that the court’s factual findings established both causation and damages. The Vermont Supreme Court agreed with plaintiff, and reversed. View "Sachs v. Downs Rachlin Martin, PLLC" on Justia Law

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At issue in this appeal was whether, under the Vermont Access to Public Records Act (PRA), a government agency had to ask state employees to determine whether they possess public records in digital form in their personal accounts when a requester specifically requested communications between specified state employees and third parties, including records that could be found only in the individual state employee’s personal account. Plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from “January 1, 2012 to present” from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: “[a]ny and all communications with or documents related to” forty-four individuals and entities and “communications received from or sent to” any email addresses with one of four domain names. Plaintiff’s request stated that “[t]hese requests include, but are not limited to, communications received or sent on a private email account . . . or private text messaging account.” Plaintiff wrote to the Chief Assistant Attorney General indicating that during the course of his numerous communications with the AGO, he had emphasized that his request encompassed communications sent to and received from the private accounts of the identified state employees, but that it did not appear that the nine AGO employees had searched for and produced responsive emails and text messages from their personal accounts. He added that, if the AGO was denying his request to the extent it included responsive records and text messages in personal accounts, the AGO should treat his letter as an administrative appeal of that denial. The Deputy Attorney General denied plaintiff’s administrative appeal, finding: (1) the PRA only addressed records generated or received by a public agency, and did not extend to private accounts or electronic devices that are not accessible to the agency; (2) there was no basis to conclude that the Legislature would have expected state agencies to conduct searches of the private accounts of state officials and employees, given the law’s attempt to balance the interest of public accountability against privacy interests; and (3) even in cases where an agency may be obligated in some cases to attempt to search a private account, plaintiff did not provide a sufficient justification for his request in this case. The Vermont Supreme Court concluded the PRA’s definition of “public record” included digital documents stored in private accounts, but the Court emphasized that it extended only to documents that otherwise meet the definition of public records. On the facts of this case, the agency was required to ask specified state employees to provide public records from their personal accounts in response to plaintiff’s public records request. Accordingly, the Court reversed and remanded. View "Toensing v. Attorney General of Vermont" on Justia Law

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Claimant Lydia Diamond appeals the summary judgment decision of the Commissioner of the Department of Labor denying her claim for PPD benefits associated with the C3-4 levels of her spine. In April 2001, claimant was injured in a motor vehicle collision while delivering newspapers for employer. The crash exacerbated claimant’s preexisting right carpal tunnel syndrome. She underwent right carpal tunnel release surgery in February 2002, and had a surgical release of her left carpal tunnel in January 2003. After the surgeries, it became clear that claimant had unresolved neck pain relating to the work accident. Her doctor diagnosed disc herniations in her cervical spine and in September 2003 performed discectomies at the C5-6 and C6-7 levels of her cervical spine and a two-level cervical fusion at C4-C6. The issue this case presented for the Vermont Supreme Court’s review centered on whether a workers’ compensation award of permanent partial disability (PPD) benefits based on damage to the C4-6 levels of claimant’s cervical spine precluded a subsequent award of PPD benefits, more than six years later, for damage to the C3-4 levels of claimant’s spine that arose, over time, from the same work injury. Claimant appealed the grant of summary judgment by the Commissioner of the Department of Labor that denied her claim for PPD benefits associated with the C3-4 levels of her spine. The Commissioner determined that claimant’s request for the additional PPD benefits amounted to a request to modify the prior PPD award and was time-barred. The Supreme Court concluded, based on the specific language of the initial PPD award, it did not purport to encompass injury to other levels of claimant’s cervical spine beyond the C4-6 levels. Accordingly, claimant was not seeking to modify the prior PPD award but, rather, sought PPD benefits for physical damage not encompassed within a previous PPD award. Her claim was therefore timely, and accordingly the Court reversed and remanded for further proceedings. View "Diamond v. Burlington Free Press" on Justia Law

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Tenant Marie Johnson appealed a trial court’s conclusion that she violated two material terms of her residential rental agreement: a “no-smoking” policy and a “no pets” policy. After review of the trial court record, the Vermont Supreme Court affirmed based on the no-pets violation: the court did not err in concluding that tenant was not entitled to a reasonable accommodation for a specific emotional support animal. The record reflected that the landlord approved tenant’s request for an assistance animal as a reasonable accommodation, but did not approve of “Dutchess” as the specific animal because of the dog’s hostility, complaints from other residents, and tenant’s inability to restrain the dog. Given this holding, the Court did not address whether the trial court erred in finding that tenant violated the no-smoking policy. View "Gill Terrace Retirement Apartments, Inc." on Justia Law

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In 2016, Ty Baker, Sr. pleaded no contest to grossly negligent operation in violation of 23 V.S.A. 1091(b) after his car collided with and totaled another car. Husband and wife owned the car; wife was driving the car when the accident occurred. Following his conviction and a contested restitution hearing, Baker was ordered to pay $828.88, which were lost wages for husband, who was not in the car at the time of the collision. Baker appealed that restitution order, arguing that husband did not qualify as a “victim” under the restitution statute, that the lost wages were not a “direct result” of defendant’s crime, and that the State’s evidence was insufficient to prove the amount of restitution. After review, the Vermont Supreme Court held that even if husband was a victim under the restitution statute, his lost wages were not a direct result of defendant’s criminal act and therefore fell outside the scope of Vermont’s restitution statute, 13 V.S.A. 7043. Accordingly, the Court reversed and vacated the restitution order. View "Vermont v. Baker" on Justia Law

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This case involved a challenge under the Compelled Support Clause of the Vermont Constitution to the Town of Cabot’s grant of federally derived but municipally managed funds for the purpose of repairs to a historic church. Relying on Chapter I, Article Three of the Vermont Constitution, plaintiffs challenged the Town of Cabot’s award of a grant to fund repairs to the United Church of Cabot, and sought a preliminary injunction enjoining the grant. Defendants moved to dismiss the case on the ground that plaintiffs lacked standing. With respect to the Town’s motion to dismiss, the trial court concluded that plaintiffs did have standing on two independent bases: (1) as municipal taxpayers; or (2) alternatively, under the Establishment Clause of the First Amendment to the federal Constitution. The court rejected the argument that municipal taxpayer standing did not apply because the funds at issue originated from federal coffers. Just as federal taxpayers have standing to pursue certain Establishment Clause claims, as recognized in Flast v. Cohen, 392 U.S. 83, 85 (1968), state taxpayers have standing to advance Compelled Support claims under the Vermont Constitution. After review, the Vermont Supreme Court concluded plaintiffs had standing to challenge the grant. However, the Court determined the evidence did not support the issuance of an injunction. The Court therefore affirmed in part, vacated in part, and remanded for further proceedings. View "Taylor v. Town of Cabot" on Justia Law