Justia Vermont Supreme Court Opinion Summaries

Michael Hazlett (Father) appealed a trial court's award to Michelle Toomin (Mother) of primary legal and physical rights and responsibilities for their daughter.  On appeal he contended that: (1) the court gave insufficient consideration to his superior ability to foster a positive relationship between the daughter and mother as compared to mother's ability to support daughter's relationship with him; (2) the court did not properly weigh an incident of Mother allegedly abusing the daughter in drawing its conclusion to award her custody; and (3) the court gave undue weight to the conclusion that mother was the primary caregiver because it did not consider the quality of her caregiving relationship with the daughter.  Finding no flaw in the trial court's conclusions, the Supreme Court affirmed the lower court's decision. View "Hazlett v. Toomin" on Justia Law

Landlord Downtown Barre Development appealed a trial court's denial of its request for declaratory relief. Landlord argued that Tenant GU Markets of Barre, LLC established a corporate structure that entitled it to terminate the parties' commercial lease.  Landlord claimed the trial court erred by not considering Tenant's conduct when deciding whether tenancy under the terms of their agreement could be terminated.  Upon review of the lease and the applicable legal authority, the Supreme Court concluded that the essence of Landlord's claim was for "anticipatory repudiation." Even assuming Landlord could rely on this common law principle, Tenant had not indicated to Landlord an intent to breach, nor did Tenant commit an act to render it "unable to perform." Accordingly, because the language of the lease was clear and unambiguous and Tenant's conduct did not constitute notice as required by the plain language of the lease, the Court affirmed the trial court's ruling that landlord was not entitled to terminate the agreement on this ground. View "Downtown Barre Development v. GU Markets of Barre, LLC" on Justia Law

Plaintiff Pamela Allen-Pentkowski appealed the Vermont Employment Security Board's (Board) determination that she was discharged from work for actions constituting misconduct, a decision which temporarily disqualified her from collecting unemployment compensation benefits.  Prior to her discharge, Plaintiff had worked for over five years at Liebert Engineering, Inc. as a computer assisted design operator. Over the course of her work for Liebert, a dispute arose when Plaintiff's work schedule changed. She claims she told her supervisor that she could make a requested change in her work hours after she had her baby, but until then, could not work an extra hour beyond 4:00 p.m. on days requested by her supervisor. In an e-mail to the company's president, Plaintiff explained she could not work the extra hour, that her supervisor would not listen to her, and that she felt harassed by his repeated insistence. Hearing an exchange between Plaintiff and the supervisor, the president came from his office and told Plaintiff that "can't is equal to refusal, refusal is reason for termination," at which point, he discharged Plaintiff. Plaintiff filed for unemployment compensation benefits but the claims adjudicator determined the nature of plaintiff's discharge from her employer was misconduct connected with her work. On appeal, plaintiff argued that her inability to work the hours requested by her employer was not misconduct within the meaning of the statute and should not disqualify her from unemployment compensation benefits.  Upon review, the Supreme Court held the employer failed to carry its burden of proof and reversed the Board's decision. View "Allen-Pentkowski v. Dept. of Labor" on Justia Law

Plaintiff US Bank National Association appealed a trial court order that granted summary judgment to Defendant Homeowner Christine Kimball and dismissed with prejudice US Bank’s foreclosure complaint for lack of standing.  On appeal, US Bank argued that it had standing to prosecute the foreclosure claim and that the court’s dismissal with prejudice was in error.  Homeowner cross-appealed, arguing that the court erred in not addressing her claim for attorney’s fees. Homeowner purchased the property in question in June 2005.  To finance the purchase, she executed an adjustable rate promissory note in favor of Accredited Home Lenders, Inc. (Accredited).  The note was secured by a mortgage deed to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Accredited. In 2009, US Bank filed a foreclosure complaint for Homeowner’s failure to make required payments.  The complaint alleged that the mortgage and note were assigned to US Bank by MERS, as nominee for Accredited.  Attached to the complaint was a copy of the instrument signed by a "Duly Authorized Agent" of MERS.  The promissory note was also attached to the complaint and appended to it was an undated allonge signed by a corporate officer of Accredited, endorsing the note in blank. Homeowner moved for summary judgment claiming, among other things, that US Bank failed to present sufficient evidence that it held homeowner’s note and corresponding mortgage. Because neither note submitted by US Bank was dated, the court concluded that there was no evidence that the note was endorsed to US Bank before the complaint was filed.  Therefore, the court held that US Bank lacked standing to bring the foreclosure action.  Following a hearing, the court denied the motions for reconsideration and to amend the complaint.  The court concluded that US Bank had submitted a defective complaint and the deficiencies were not mere technicalities, but essential items, without which the case could not proceed.  The court held that US Bank lacked standing when the complaint was filed, and dismissed the complaint “with prejudice.”  Upon review of the trial record and briefs submitted by the parties, the Supreme Court affirmed the trial court's decision in all respects but for the 'with prejudice': "this may be but an ephemeral victory for homeowner.  Absent adjudication on the underlying indebtedness, the dismissal cannot cancel her obligation arising from an authenticated note, or insulate her from foreclosure proceedings based on proven delinquency." The Court dismissed the foreclosure complaint and remanded the case for consideration of the parties' fees dispute. View "U.S. Bank National Association v. Kimball" on Justia Law

A jury convicted Defendant Jeffrey Kinney of driving while intoxicated and attempting to elude an officer while operating a vehicle.  On appeal, Defendant argued: (1) the trial court erred in admitting defendant’s refusal to take a preliminary breath test; (2) the prosecutor, in closing, impermissibly injected personal opinion about his credibility and commented on his failure to testify; and (3) the State failed to introduce sufficient identity evidence to support the verdict. A Bennington police officer was patrolling in his cruiser at about ten o’clock at night when he observed an all-terrain vehicle (ATV) being driven on the street in Bennington.  Although it was dark, the officer was able to observe the driver, whom he recognized as Defendant from prior contacts and from his knowledge that Defendant owned that particular model of ATV. The ATV ultimately went over an embankment and the police pursuit continued on foot.  Another officer testified that he found the abandoned two-seat ATV in the woods, followed voices, and found two men, Defendant and another individual.  Defendant appeared to be intoxicated; he was unsteady on his feet, had slurred speech, and smelled of alcohol.  Defendant’s clothes generally matched the clothes worn by the driver of the ATV.  Defendant told the officer that a third person named Jason Webb had been driving the ATV, and had since taken off running.  Defendant also said that he was in the area for a bonfire.  The officer saw no signs of a bonfire, and no third person was ever located in the area. The officers recovered the key to the ATV from defendant’s pocket. Upon review, the Supreme Court found " no basis to disturb the judgment" and affirmed Defendant's conviction. View "Vermont v. Kinney" on Justia Law

Plaintiff Linda Nordlund appealed a grant of summary judgment by the Superior Court, Environmental Division (Environmental Court) in favor of Defendants Elizabeth Van Nostrand, and Mark and Nancy Van Nostrand for lack of subject matter jurisdiction. Plaintiff owned property that abuts the Van Nostrand property. The Van Nostrand property runs behind and is contiguous with both the Nordlund and front parcels. The back parcel does not border a public road. These parcels have been the subject of numerous proceedings. In a 2006 quiet title action, the superior court determined that the Nordlund parcel was burdened by an existing eighteen-foot right-of-way benefiting the back parcel. In 2004, Defendants applied for a zoning permit to build a house on the back parcel. The zoning administrator originally granted the permit, but Plaintiff appealed the decision to the local review board. The Board reversed, finding that the Nordlund right-of-way did not meet locality's rule that requires a fifty-foot-wide right-of-way in order to develop landlocked property. Defendants appealed that decision to the Environmental Court. In the course of the proceedings, Defendant Elizabeth Van Nostrand granted defendants Mark and Nancy Van Nostrand a fifty-foot-wide right-of-way across her property (the front parcel) that connected the back parcel to the closest road without crossing onto the Nordlund parcel. Defendants applied for a new zoning permit citing the Van Nostrand right-of-way as the means of complying. The Board approved the permit and Defendants subsequently constructed a house on the back parcel. This case stems from what Plaintiff claimed is a misuse of the Nordlund right-of-way to access the now completed home on the back parcel. On appeal, Plaintiff argued that this use violated the prior zoning decisions that originally disallowed the right-of-way as a basis for development of the back parcel. Upon review, the Supreme Court found that the Environmental Court had no jurisdiction because there was no violation of a zoning decision respecting Defendants' property or use of the rights-of-way in question. Accordingly, the Court affirmed the dismissal of Plaintiff's case. View "Nordlund v. Van Nostrand" on Justia Law

This case stems from a dispute over the 1973 William C. Alden Trust (the Trust) benefiting the Grantor's second wife Nancy Alden, his two children by Nancy, and his three children from his first marriage. Todd Alden and Julia Alden Dee, two of Grantor's children by his first marriage, alleged that Nancy in her capacity as trustee, acted fraudulently and in violation of her fiduciary duties in her administration of the Trust and invaded trust principal through self-dealing, concealment, and misrepresentations. They sought to hold Nancy and her two children liable for damages resulting from the alleged improprieties. The parties filed cross motions for summary judgment, and the trial court granted that of the Plaintiff/Counterclaim-Defendant, Estate of Nancy B. Alden. Julia Dee and Todd Alden appealed. The sum of Defendants' arguments to the Supreme Court contended that there were multiple disputed issues of material fact that should have precluded summary judgment. Upon review of the lengthy history of the Trust and the parties' litigation pertaining to the Trust, the Court found that Defendants' simply failed to prove their case: "[a] lack of sufficient evidence on one side does not mean a disputed issue of fact remains." The Court affirmed the lower court's grant of summary judgment in favor of the Trust. View "In re Estate of Alden" on Justia Law

Applicant Times and Seasons, LLC, appealed the Environmental Court's grant of summary judgment to the Natural Resources Board and the corresponding denial of Applicant's "Act 250" permit application to construct and operate a gift shop and deli with related improvements in the Town of Royalton. On appeal, Applicant argued that it could avail itself of the definition of "primary agricultural soils" in 10 V.S.A. 6001(15) as it was amended during the course of its litigation to secure compliance with the only Act 250 criterion for which it did not receive approval. Upon review of the legislative history of the applicable legal authority, the Supreme Court found that a reconsideration application is a continuation of an original Act 250 permit application. Accordingly, the submission of a reconsideration application is not a separate vesting event: "[c]ontrary to applicant's proposed interpretation, an applicant on reconsideration may not simultaneously take advantage of the laws in effect at the time of the initial application and those in effect at the time of the reconsideration application. It is not a two-way street." The Court affirmed the lower court's grant of summary judgment against Applicant. View "In re Times and Seasons, LLC" on Justia Law

Appellants Shenandoah, LLC, David Shlansky, Ting Chang, and other entities and individuals, appealed the Environmental Court's summary judgment decision upholding an "Act 250" jurisdictional opinion. Appellants have a variety of overlapping interests. Mr. Shlansky created an irrevocable trust (Trust) to benefit his and his wife Chang's children. As settler of the Trust, Mr. Shlansky contributed the property that is the subject of the underlying jurisdictional opinion. The Trust has an ownership stake in various companies that have engaged in land-development activities in the relevant jurisdictional area. Shenandoah, LLC, one such created entity, sought to build a ten-unit residential housing project. In August 2008, Shenandoah requested a jurisdictional opinion to determine if the project required an "Act 250" permit. In a September 2008 decision, the district coordinator found that the project required an Act 250 permit because it involved the construction of a housing project with ten or more units. Appellants appealed portions of this decision to the Environmental Court. The court upheld the district coordinator's jurisdictional opinion. The court concluded that Mr. Shlansky and Ms. Chang benefited from the Trust's land-development activities so the Trust's development activities were attributable to them personally. Appellants challenged this conclusion on appeal. As support for their position, they pointed to the affidavits filed by Mr. Shlansky, Ms. Chang and "the legal existence of the Trust, which is irrevocable." Upon review of the lower court record and the applicable legal authority, the Supreme Court affirmed the Environmental Court's decision. As the Environmental Court concluded, benefit to the parents rendered them "persons" affiliated with subdivisions and development previously undertaken by entities owned or affiliated with the Trust as defined by Act 250. View "In re Shenandoah LLC" on Justia Law

Petitioner Allen Rheaume is currently serving a life sentence as a habitual offender. He has forty-eight convictions, five of which either involve sex crimes or have a sexual element. He also has had sixty-three disciplinary report convictions while incarcerated. He challenged his classification by the Department of Corrections (DOC) as a "high risk" sex offender and that designation's concomitant programming requirements. The trial court granted respondent's motion to dismiss for failure to state a claim and lack of subject matter jurisdiction, finding that review under the state rules of civil procedure was unavailable for classification and programming decisions made by the DOC. The question of whether an inmate designated as "high risk" can appeal his programming requirements through Vermont Rule of civil Procedure 75 is one of first impression for the Supreme Court. Upon review, the Court found that no statute provides for review of DOC programming decisions, "so the question becomes whether these fall within the class of decisions appealable at common law under one of the extraordinary writs." The Court concluded that while an inmate may have review of his designation under Rule 75, the particular programming requirements promulgated after that designation becomes final are a matter of DOC discretion and as such are non reviewable under Rule 75. Therefore, the Court affirmed the trial court's determination that the programming requirements are not reviewable under Rule 75. View "Rheaume v. Pallito" on Justia Law