Weekly Update Friday the 13th Edition (May 2022)

By Andy Delaney

Three opinions issued this Friday the 13th.

First up is a likely future bar exam question dealing with real estate. Back in the ‘50s, some folks deeded property to the Town of Albany for the purpose of “4-H recreational and forestry purposes.” There was a clause in the deed that said, arguably, if the town tries to use the property in any other way, then the owners’ heirs would have the “right to re-enter and repossess” the land upon demand. All was quiet until 2018 when the town hired a logger to clear the land, a neighbor sued, an heir got joined, and the trial court found the deed reasoned that the logging was not for 4-H purposes and therefore, the land reverted to the heir (who’d filed a cross claim arguing the same) and granted summary judgment in favor of the heir. On appeal, SCOV reasons that we’re not quite there yet and that the logging was not necessarily a prohibited use under the deed, so back to the trial court it goes. If you like discussions about how “the fee simple subject to condition subsequent and the determinable fee are similar estates,” then this one is for you. Sanville v. Albany, 2022 VT 22.  

Second, we have an alphabet soup of employment law—FEPA, PFLA, FMLA, and WC. Plaintiff started working for Mack in 1996 as  a molder. She injured her left knee outside of work in 2015 and took some time off under Vermont’s Parental and Family Leave Act (PFLA) and the federal Family and Medical Leave Act—a concurrent PFLA/FMLA leave. When she returned to work, she had a doctor’s note that said she could lift “frequently” or 34-66% of the workday. Her job required frequent lifting. An hour into her third shift back, she left because of knee pain and didn’t return to work for more than a month. When she came back, she had a four-hours-a-day doctor’s note. The company put her in a new position as a finisher and she did the four-hour-a-day thing for a couple months. She went back full-time in the finisher’s position for about six months until she tweaked her knee again. She came back with a light-duty doctor’s note, but the company claimed it didn’t have anything for her, so she punched out and went home. A week later, the company sent her a letter saying she’d exhausted her leave time and needed to fill out paperwork. Plaintiff applied for worker’s comp and nine days later she got fired, more or less. She filed several claims, eventually, but the retaliation (FMLA/PFLA and worker’s comp) and reasonable-accommodation claims were what stuck around when it got to summary-judgment time. Ultimately, the trial court granted summary judgement to employer, concluding that although plaintiff made out prima facie claims, employer offered legitimate, nondiscriminatory reasons for terminating plaintiff’s employment, and plaintiff failed to demonstrate that those reasons were pretextual.

On appeal, SCOV concludes that the trial court was justified in granting summary judgment. There are a few things worth noting, however. One, plaintiff had an affidavit from a coworker about light-duty work. SCOV spends a fair amount of ink explaining why the affidavit was too vague to create a triable issue of fact. Now, I’m just a simple country lawyer, but last I knew, the standard for summary judgment required taking the evidence in the light most favorable to the non-moving party. Seems odd here. Two, it seems that SCOV analyzes the facts in such a way as to deprive plaintiff of “all reasonable doubts and inferences”—for example, SCOV reasons that the timing of plaintiff’s firing (when as a 19.5-year employee, she was just about to accrue another 11.9 weeks of medical leave time) does not raise any inference of pretext. On the notice issue for reasonable accommodation, SCOV appears to fault plaintiff for not requesting accommodation when her doctor’s note could be construed as providing notice of a need for accommodation. I could be wrong, but it seems to me that there’s a bit of judicial factfinding that a reasonable person might consider outside the realm of the summary-judgment standard of review. Just sayin’. Gates v. Mack Molding Company, Inc., 2022 VT 24.

Finally, we have a decision where my partner Charlie decided to title himself “supervising attorney” for writing the brief. Goofball. This is a family-law case and the lengthiest discussion is about whether it’s appropriate for a court-appointed attorney for the child to participate and cross examine at a hearing over mom’s objections. The bottom line is that SCOV concludes that the participation of son’s attorney was fine and helped get to the truth of the case. There are a number of other issues but because my firm was involved in this case, I try to avoid too much public commentary. SCOV affirms the trial court. Vance v. Locke, 2022 VT 23.    


  1. Anyone who misses law school might want to review footnote 2 of the real estate case.

    The fee simple subject to condition subsequent and the determinable fee are similar
    estates. Collette v. Town of Charlotte, 114 Vt. 357, 360, 45 A.2d 203, 205 (1946) (“A fee upon
    condition resembles a determinable fee in that it exhausts the whole estate.”). However, the future
    interests retained by the grantors under the estates are different. Grantors retain a right of reentry
    on a fee upon condition, and a possibility of reverter on a determinable fee. See id. (“The only
    practical distinction between a right of reentry for breach of condition subsequent and a possibility
    of reverter on a determinable fee is that the in the former the estate in fee does not terminate until
    entry by the person having the right, while in the latter the estate reverts at once on the occurrence
    of the event by which it is limited.”).


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