Articles Posted in Civil Procedure

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A mother appealed the termination of her parental rights to two children: D.H. (born 2004) and S.C. (born 2006). She argued the family court improperly withheld its discretion by refusing to grant a thirty-minute continuance so that she could attend the termination hearing. After review, the Vermont Supreme Court determined that although mother’s absence was her mistake in light of the proper notice she was given, her attorney had spoken with her and represented to the court that mother could be there in a short time. Delaying the hearing for a brief time to allow mother to appear would not have disrupted the court’s calendar or prejudiced the children, DCF, or other litigants. The Court found that denying the request had a harsh effect on mother because it resulted in the case being decided based on the exhibits and testimony presented by DCF, but without mother’s testimony. This deprived mother of the opportunity to testify regarding her participation in treatment, her progress toward the case plan goals, and her strong relationship with the children. The trial court explicitly relied on mother’s absence as evidence supporting termination, even though mother’s attorney had informed the court that she was in touch with mother and requested the continuance while the hearing was still in progress. Furthermore, the record showed mother was actively involved throughout the proceedings below. For these reasons, the Supreme Court reversed the court’s decision to terminate mother’s parental rights, and remanded the matter to the family court for the evidence to be reopened so that mother may have an opportunity to participate. View "In re D.H. & S.C." on Justia Law

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An interlocutory appeal arose from an eviction action in which landlord, Shires Housing, Inc., failed to provide tenant Carolyn Brown, with written notice of tenancy termination before filing for eviction under the Mobile Home Parks Act. The trial court denied defendant’s Vermont Rule of Civil Procedure 12(b)(6) motion to dismiss, ruling that 10 V.S.A. 6237(a)(3) contained an exception to the notice requirement. Because the Vermont Supreme Court concluded the relevant provision of the Mobile Home Parks Act was ambiguous and because the available tools of statutory interpretation all indicated the Act required pre-eviction notice, the Court reversed. View "Shires Housing, Inc. v. Brown" on Justia Law

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Mother appealed the trial court’s dismissal of her parentage action under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as well as its denial of her motion to reconsider. She and father were the parents of a child born in Vermont in June 2016. The child also lived with parents for a time in Virginia. Father initiated child custody proceedings in Virginia in August 2016 and was granted custody of the child. Mother appealed that decision within the Virginia court system. Mother then filed a parentage action in Vermont. Following a joint hearing before Virginia and Vermont courts, the Virginia court retained jurisdiction over the custody case, and the Vermont court dismissed the parentage action. Mother essentially argued to the Vermont Supreme Court that Vermont, not Virginia, should have asserted jurisdiction over this child custody case. Finding no reversible error in the trial court’s decision, the Vermont Supreme Court affirmed. View "Pierce v. Slate" on Justia Law

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Petitioner Stevens Law Office appealed a trial court decision denying assignment of a future structured settlement payment from a fund administered by Symetra Assigned Benefits Service Company for legal services rendered by petitioner on behalf of beneficiary Shane Larock. Shane Larock retained petitioner to represent him in a child in need of care or supervision (CHINS) proceeding which he expected to follow the birth of his daughter in early 2016. As payment, petitioner asked Larock for a $16,000 nonrefundable retainer which would be paid through assignment of that sum from a $125,000 structured settlement payment due to Larock in 2022. Under this arrangement, the structured settlement payment issuer, Symetra Assigned Benefits Service Company, would pay petitioner $16,000 directly when the 2022 periodic payment became due under the original terms of the settlement. Larock agreed to the fee arrangement and the assignment. The trial court issued a written order concluding that it could not find that the fee arrangement was reasonable because, given petitioner’s ongoing representation of Larock, such a determination would be speculative. After review, the Vermont Supreme Court reversed and remanded so that the trial court can conduct the best-interest analysis required by statute before determining whether to deny or approve assignment of a structured settlement payment. View "In re Stevens Law Office" on Justia Law

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Neighbors were a group of property owners in the neighborhood of PATH at Stone Summit, Inc.’s proposed therapeutic community residence in Danby. They appealed the Green Mountain Care Board’s decision that the proposed project could proceed without a certificate of need under 18 V.S.A. 9434(a)(5). The Vermont Supreme Court concluded the appeal is not properly before it because Neighbors failed to timely file a petition to become interested parties. Accordingly, the Court dismissed Neighbors’ appeal. View "In re PATH at Stone Summit, Inc." on Justia Law

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Defendant-borrowers Skip and Paris Watts appealed the trial court’s summary judgment decision in favor of plaintiff-lender Deutsche Bank National Trust Company in this mortgage foreclosure action. They argued that the trial court erred by finding that a dismissal with prejudice under Vermont Rule of Civil Procedure 41(b) was not an adjudication on the merits given preclusive effect in a foreclosure action. Lender argues in response that earlier decisions of this Court that gave preclusive effect to the dismissal of foreclosure actions should be applied only prospectively and not to this case. Defendants entered into the mortgage at issue here in 2006. They failed to make payments in 2008. The lender accelerated payments and called for the note in late 2008. Foreclosure proceedings were initiated, and publication by service was completed in early 2010. Borrowrs did not file an answer to the complaint. The case sat for approximately one year; the trial court dismissed the case in July 2011. Following the dismissal, the borrowers attempted to find a solution that would allow the borrowers to resume payments. The Lender then filed suit again in 2013, alleging the borrowers defaulted on the 2008 promissory note. Borrowers answered the complaint, arguing that the 2013 action was precluded by res judicata by the 2009 action. The trial court granted lender’s motion, applying equitable principles to find that the 2011 dismissal was not a preclusive adjudication on the merits but that lender was entitled to recover interest only if it was due after the date of lender’s first, 2009, complaint against borrowers. The Vermont Supreme Court reversed, finding that the lender did not advance a new default theory by refiling its 2009 case in 2013. Therefore, its claims were precluded by the dismissal of the 2009 case. View "Deutsche Bank National Trust Co. v. Watts" on Justia Law

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In this case, a Vermont voter and candidate in the state’s 2016 presidential primary, challenged whether U.S. Senators Ted Cruz and Marco Rubio were constitutionally qualified to run for President of the United States. The trial court dismissed the suit on the grounds that appellant lacked standing and the court lacked jurisdiction to assess the qualifications of the Senators to run for president. Appellant appealed both holdings, but the Supreme Court affirmed the dismissal for a different reason: the case was now moot. View "Paige v. Vermont" on Justia Law

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This case focused on whether the Department for Children and Families (DCF) could deny an applicant temporary housing assistance under General Assistance (GA) Rule 2652.3 for having left her housing in response to a notice of termination without cause from her landlord. DCF argued that applicant Dezarae Durkee caused her own loss of housing and therefore was ineligible for assistance. The Human Services Board upheld this determination. Applicant argued that leaving in response to a notice of termination without cause does not constitute causing her own lack of housing and sought a declaration of such damages. The Vermont Supreme Court granted the declaratory judgment but concluded damages were not appropriate relief. View "In re Appeal of Dezarae Durkee" on Justia Law

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Defendant Extreme Contracting, LLC appealed a trial court’s order granting a default judgment to plaintiff Hermitage Inn Real Estate Holding Co., LLC in a contract dispute. The court held defendant responsible for enforcing a mandatory arbitration clause in the parties’ contract and ordered defendant to “initiate” arbitration by a certain date. When defendant failed to do so, the court considered this a failure to obey a “scheduling order” under Vermont Rule of Civil Procedure 16.2, and as a sanction, it granted a default judgment to plaintiff under Rule 37(b)(2)(C). Defendant argued, among other things, that a default judgment was inappropriate here. It contended that the court should have granted its motion to dismiss plaintiff’s suit given the mandatory arbitration provision, and that as the defendant, it should not have been required to “initiate” arbitration. It also argued that the court erred in denying its motion to vacate the default judgment. After review, the Vermont Supreme Court agreed the court erred, and based on that order ultimately granted a sanction unsupported by the facts and the law. The Court reversed the trial court’s decision and remanded for entry of an order requiring plaintiff to initiate arbitration or face dismissal of its suit. View "Hermitage Inn Real Estate Holding Co., LLC v. Extreme Contracting, LLC" on Justia Law

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The events leading to this appeal were rooted in the parties’ 2007 divorce. In September 2005, the parties entered into a final stipulation that provided, among other things, that defendant James Billado was to pay plaintiff Laura Cramer $50,000 to buy out her interest in defendant’s business. Before the court entered a divorce judgment, defendant sought to set aside his uncounseled stipulation on the ground that, since signing the stipulation, he learned that while acting as bookkeeper, plaintiff had been stealing money from the business. The trial court rejected his claim, but found that both parties treated the various business accounts as personal accounts, withdrawing funds at will to pay for vacations, credit card debt, and other personal expenses. Defendant turned a blind eye to poor bookkeeping practices since both he and plaintiff received the financial benefit. Given this record, the trial court declined to set aside the parties’ stipulation. Plaintiff recorded a certified copy of the judgment in the Bakersfield land records to perfect her judgment lien on defendant’s property. In 2015, plaintiff filed this foreclosure action alleging that defendant had failed to pay on the 2007 judgment. Defendant appealed the trial court’s denial of his motion to set aside the default judgment of foreclosure on the grounds that the trial court erred in allowing service of the foreclosure complaint by tack order and in declining to set aside the default foreclosure judgment in light of his defenses. After review, the Vermont Supreme Court concluded the trial court’s orders were within its discretion and accordingly affirmed. View "Cramer v. Billado" on Justia Law