IDK Monthly? Update

Look, it's been pretty quiet for the last month-ish so my slackery is somewhat mitigated. You get what you pay for here. Here's the rundown for the since-St.-Paddy's-Day opinions.  

One case this week. Bankruptcies can complicate legal proceedings. In this case, plaintiff filed a medical negligence suit against Springfield Hospital and Emergency Services of New England for a missed diagnosis. When Springfield Hospital filed for bankruptcy, the trial court issued an order dismissing plaintiff’s case without prejudice. The dismissal order gave the parties ten days to object and listed five potential events that plaintiff could—within thirty days—use to reopen the case without charge by filing a “Request to Vacate Dismissal and Reopen the Case.” The bankruptcy case was closed in July 2021. In October 2021, plaintiff moved to reopen the case arguing that, technically, none of the five listed events had occurred and even if one had, she should be excused from the thirty-day time limit because defense counsel hadn’t given timely notice of the closure. Plaintiff also argued that the dismissal order wasn’t valid in the first place because only one of the defendants had filed for bankruptcy. The trial court granted plaintiff’s motion, noting that there was no legal or equitable basis to dismiss the case simply because one of the defendants had filed for bankruptcy and that it had only intended to stay the case, not dismiss it. Defendants moved for reconsideration. The trial court denied defendants’ motion but allowed the defense to file an interlocutory appeal.

Here’s  where it gets a little strange. SCOV doesn’t necessarily decide whether the dismissal order was valid or not in the first place, though it notes that plaintiff did not object nor did she appeal. SCOV reasons that the trial court could issue the dismissal order in the first place but doesn’t reach the question whether it was proper or an abuse of discretion. Ultimately, SCOV concludes that the trial court abused its discretion because it had no legal basis to vacate the dismissal and reopen the case—either under the 2019 dismissal order or Rule 60(b)—and reverses the trial court’s vacation of the dismissal order because, according to SCOV, “[P]laintiff’s own lack of diligence, not the 2019 dismissal order or defendants’ conduct, is the reason for her situation.” I’m not sure I agree, but that’s the way SCOV puts it. Hill v. Springfield Hospital, 2023 VT 23.            

For weeks it was quiet. Too quiet. Four opinions issued on the 14th of April (after a three-week hiatus).

The first case is relatively straightforward. The “yute” in this case moved for youthful-offender status. The family division took testimony and made findings, one of which was that it was unlikely the respondent would be able to complete necessary treatment before aging out of the youthful-offender program. On appeal, SCOV reasons that this determination was within the trial court’s discretion and affirms. In re G.C.. 2023 VT 22.

Second case for the week is about forum-selection clauses and how they hold up. In this case, the answer is “well.” Plaintiff sued defendant after it told him that it had made a clerical error and wouldn’t be able to transport some motorcycles plaintiff had contracted with defendant to transport. The contracts had a forum-selection clause for Milwaukee, Wisconsin. Plaintiff paid a whole lot more money for the transportin’. Plaintiff then filed suit in Vermont and defendant moved to dismiss. The trial court dismissed in a “laconic” order. (That means “light on the words,” and yes, I had to look it up.) On appeal, SCOV agrees that the forum-selection clause survives here and affirms the trial court’s dismissal, though in a somewhat-less-laconic manner. Justice Cohen laconically concurs, though he is “troubled by the trial court’s one-line order dismissing the case without any review of the fundamental fairness of the forum-selection clause.” Margolis v. Daily Direct, LLC, 2023 VT 20.

Next we turn to the search-and-seizure provisions of the Vermont constitution. This is technically the third time at SCOV for this case—an initial opinion, an amended opinion, and this one. SCOV concludes the trial court’s findings are sufficient—this go-‘round—to support the conclusion the investigating officer’s discovery of a shell casing while performing a welfare check was not outside his limited license to be where he was at the time he was there. I could have sworn that the casing was out based on the initial and amended opinions (defendant thought the same thing), but this time the trial court—according to SCOV—got the analysis right. Insert shrug emoji here. State v. Calabrese, 2023 VT 19. (Click here if you’re looking for the previous summaries.)

Rounding out the week—I don’t understand that phrase but I’ll use it anyway—we have a quasi-criminal family law case. This case turns on what “available to testify” means in the context of V.R.E. 804a. It’s a sad situation and I won’t go too far into it, but we can say that mom and dad have an “extremely dysfunctional” relationship and mom is convinced that dad was sexually abusing their-at-the-time-four-year-old son. Child made statements to mom and others indicating as much but there are some indicators that the four-year-old’s statements may not have been the truth, the whole truth, and nothing but the truth. The rule—804a—provides, in a nutshell, that a court can admit hearsay statements of a putative child victim of sexual abuse if certain indicia of truthfulness are met and the child is “available” to testify. The available-to-testify requirement finds its roots in the confrontation clause. Here, the trial court reasoned that while many of the elements for admissibility were met, the child was not available to testify based on the family court rules and statutes and excluded the statements on that basis (a lot of the statements came in through expert testimony anyway). Mom appeals the denial of her motion to permanently suspend parent-child contact with dad, arguing that the trial court got it wrong in excluding the statements. On appeal, SCOV reasons that this was a difficult call and the trial court’s reasoning was sound. Mom also argues that the trial court improperly relied on the son’s attorney and GAL in determining whether the child could testify. SCOV doesn’t see an abuse of discretion here, notes that even if it did find error, a lot of the statements came in another way, and affirms the trial court’s ruling. Davis v. Davis, 2023 VT 21.

 One opinion March 24. This is a child-in-need-of-supervision (aka CHINS) case and mom’s second trip to SCOV. This appeal concerns transfer of custody to dad, not the merits (so we don’t get into the CHINS merits at all). Dad was previously the noncustodial parent. In transferring custody to dad, the trial court concluded that mom had not done what she needed to do but that dad had. Mom appeals. As an initial matter, the state argues mom’s appeal is late—filed three months after the order transferring custody. The SCOV majority reasons that things were left kinda open by the trial court when it came to parent-child contact so while typically the transfer-of-custody order date would start the appeal clock a-tickin’, the parent-child-contact schedule is what finalizes the order and mom’s appeal is timely (the majority does mildly criticize the trial court’s confusion-engendering approach in a footnote). That means we get to the merits of the appeal. Mom’s primary argument is that the discharge-to-dad decision required a finding of a change in circumstances. The majority agrees that this is true. But, the majority also concludes that the trial court’s findings support a finding of a change in circumstances in this case, even if the trial court did not explicitly state that it was making that finding. With that threshold issue out of the way, the majority concludes that the trial court’s findings were adequate on the best interests of the child and affirms. Justice Eaton, joined by Justice Cohen, concurs on all points except the best-interest factors. On this point, the dissent reasons that mom’s shortcomings do not equate to dad meeting these factors. The dissent would remand for further findings on the best-interests factors. In re Z.P., 2023 VT 17.