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| There's a lot going on here |
Jeez. I don't know the last time SCOV issued a half-dozen opinions in a week.
That should work for a future callback.
Kruska has already covered the other three and I think she did, in fact, do it before I read her texts (as advertised).
We'll start with a case about mutual wills, estate planning, and what happens when someone doesn't follow the plan. This is a long one. And this ain't the first nor second time at SCOV. This is McHugo III.
Back in the day, John and Patricia McHugo divorce but keep their assets together—joint accounts, joint Tucson house, joint everything—so as to avoid probate by survivorship. In 1997, as part of John's estate planning, they execute mirror-image mutual wills in Arizona. Each will is "executed in consideration of" the other, and they basically agree not to revoke or alter them (unless they agree). The basic plan is that the "survivor" uses the property for life; but when the survivor dies, all property goes equally to the three kids—Gregory, Susan, and Nancy.
In 2006, though, Patricia changes her mind. She executes a new will in Montpelier, revokes the 1997 mutual will on her side, gives each of Susan’s kids $5,000, and otherwise cuts Susan out, leaving the rest to Gregory and Nancy. John dies in 2010; because virtually everything is jointly titled, it all goes to Patricia by operation of law.
After John dies, Patricia deeds the Tucson house to Gregory and Nancy, effective at her death; she buys a Greensboro cottage with jointly held funds (with John's written consent) and later deeds that to Gregory and Nancy too. She also makes a series of gifts favoring Gregory and Nancy’s families. Patricia dies in 2016 and her 2006 will is offered in probate. Susan moves to allow the 1997 will instead, arguing that the mutual wills lock in the agreement. But the probate division allows the 2006 will, and kicks the 1997 will.
Susan appeals that decision. SCOV first says (see this post) the 2006 will is valid and the 1997 will is not, but notes she may still have a contract claim based on the mutual wills. Susan then files a civil action: breach of contract and breach of the implied covenant of good faith and fair dealing against Patricia's estate; unjust enrichment, constructive trust, and interference claims against Gregory and Nancy.
Gregory and Nancy move for summary judgment. The trial court knocks out the interference claims but keeps unjust enrichment and constructive trust alive. After a two-day bench trial in March 2024, the court initially decides the mutual-wills contract never became enforceable because John either knew Patricia intended to disinherit Susan and didn’t act, or consented to her plan—so no breach, no unjust enrichment, no recovery.
Susan appeals again (see this post), and SCOV reverses and remands. SCOV reasons that the mutual wills are an enforceable contract on their own terms and that unilateral notice doesn't rescind it; John's failure to object doesn’t equal consent. On remand, the trial court issues new findings and conclusions based on the same record. This time, it reads the mutual wills to mean what they say: the survivor’s entire property at death—however acquired, including by survivorship—is supposed to go equally to all three children.
The trial court thus concludes that Patricia breached the contract in two ways. First, she violated the survival clause and the overall distributive scheme by leaving substantial financial assets—nearly $2M—to Gregory and Nancy only under the 2006 will. So, the trial court awards Susan one-third via unjust enrichment. Second, Patricia breached the implied covenant of good faith and fair dealing by transferring the Tucson and Greensboro properties to Gregory and Nancy during her lifetime, undermining the agreed plan that all property would be held and then divided equally at the survivor's death. The court imposes constructive trusts over one-third interests in each property in Susan's favor.
As to prejudgment interest, the trial court declines interest on the real estate (reasoning the constructive trust will capture appreciation) but awards prejudgment interest on the money judgment from November 2016 to April 2025—essentially doubling the award. Gregory and Nancy move to amend, arguing interest isnt mandatory and shouldn't be awarded. The trial court is unpersuaded. Interest is mandatory (or, alternatively, appropriate in equity) because damages were liquidated or readily ascertainable, and they had the ability to tender Susan's share at any time.
Gregory and Nancy appeal. They primarily go after the trial court's reading of the mutual wills and the unjust-enrichment/constructive-trust remedies. They also challenge the prejudgment interest.
SCOV kicks it off with the mutual wills as both testamentary instruments and a contract. A contract to make a will is treated like any other contract. SCOV looks to the plain language and overall scheme. Each will states intent "to dispose of all of my property which I may own at the date of my death," and there's a lot of equally-amongst-the-children language in there. There's a so-called survival clause that says exactly that.
Gregory and Nancy argue the survival clause only applies if John outlives Patricia but dies within 30 days of her death, and that otherwise, nontrust assets (including joint-tenancy property) aren't governed by the mutual wills. SCOV rejects that reading as inconsistent with the language and the evident purpose: the instruments repeatedly say they intend to dispose of "all" property at death, and nothing suggests John and Patricia intended the survivor to die partially intestate or to make equal distribution contingent on a narrow timing quirk.
The siblings also point to Article IV of John's will, which gives the personal representative power to make "disproportionate shares of assets among the distributees" to avoid fractional interests, and they argue this gave Patricia broad discretion to favor them. SCOV reads that clause narrowly: it only applies to a personal representative in a probated estate. John’s will was never probated, so there was no personal representative exercising those powers. Even if there had been, the clause would allow unequal specific assets to be used to reach the overall equal division, not to disinherit one child outright.
On the lifetime transfers, Gregory and Nancy say the mutual wills don’t prohibit Patricia from transferring assets during life, so there’s no breach. SCOV notes that the trial court didn’t find an express-term breach on that point. Instead, the trial court found breach of the implied covenant of good faith and fair dealing, which exists in every contract. That covenant requires parties not to undermine the agreed common purpose or the other party's justified expectations, and in simple terms, evasion of the bargain's spirit can violate it.
SCOV agrees with the trial court that the common purpose was clear: survivor uses the property during life; at death, all property the survivor owns goes equally to all three children. Patricia's lifetime diversion of jointly funded real estate to two children only, in the context of an express equal-share scheme, undermined that purpose (and Susan's expectations), and thus breached the implied covenant.
On unjust enrichment and constructive trust, SCOV reaffirms that a third party can be unjustly enriched when property or funds are diverted in violation of a contract to make a specific devise. Susan conferred a benefit on Gregory and Nancy only because Patricia breached the mutual-wills contract; the siblings accepted and retained that benefit; under these circumstances, SCOV agrees with the trial court that retention without compensating Susan is inequitable. The money judgment and constructive trusts are within the trial court's equitable discretion and are upheld.
SCOV then addresses prejudgment interest. Defendants say it shouldn't be mandatory and, in any event, awarding it is an abuse of discretion because damages and liability were "long disputed." SCOV chooses not to decide whether interest is mandatory here. SCOV instead focuses on discretion. Vermont courts have broad discretion to award prejudgment interest where appropriate, even in non-contract actions.
SCOV notes that the relevant assets were always ascertainable. Gregory and Nancy had the money and knew Susan claimed an equal share based on the mutual-wills contract. The trial court weighed the equities and concluded interest was necessary to avoid injustice given that Gregory and Nancy had the use of money that should have included Susan’s share for nearly a decade. SCOV sees no abuse of discretion in that conclusion.
So, SCOV affirms. Mutual wills are an enforceable contract requiring equal division of all property owned by the surviving parent at death. Patricia’s 2006 will and lifetime transfers breach both the express terms and the implied covenant, unjustly enriching Gregory and Nancy. The money judgment, constructive trusts, and prejudgment interest all stand. Inouye v. McHugo, 2026 VT 33.
We now turn to torts.
A FedEx driver heads up a snowy, windy Rutland County driveway to drop a package by a homeowners' grill, same as he's done before. This time, however, there's a white board on the ground that blends with the snow just enough that he doesn't see it while carrying the box with both hands. He steps on it, falls, breaks his ankle, and goes through two surgeries with hardware in and out, plus a recovery stretch of pain and lost activities. He sues the homeowners for premises liability.
At trial, the jury finds negligence on both sides—40% plaintiff, 60% defendants. While the jurors allow all of his claimed economic damages, they only allow $5K in noneconomic (pain and suffering, etc.), resulting in a net judgment not close to what he was seeking.
So the driver files a post-verdict motion, arguing this has to be a compromised verdict. With that injury and those surgeries, $5K for pain and suffering is too low. The jury must have split the proverbial baby. He moves for additur or a new trial and points to juror questions about testimony, instructions, insurance, and unanimity as signs of confusion and division.
The trial court doesn't buy it and denies the motion.
The majority backs the trial court. Looking at the record in the light-most-favorable-to-the-verdict way, The majority reasons that this is a classic disputed-damages case. There's testimony from plaintiff and friends about significant pain and a rough year. There's also competing medical testimony, including a defense orthopedist who describes the surgeries as routine, sees no cartilage damage, and expects full recovery. And this jury did award some noneconomic damages. So, the majority says $5K can reasonably reflect the jury accepting some pain while discounting the claimed severity and duration.
The various juror notes—wanting to "see" testimony, arranging childcare, asking about unanimity, and hearing a "don't speculate about insurance" instruction—don't, in the majority's view, prove prejudice or a compromised verdict. The majority opines that's ordinary deliberation noise, and not a clear indication of compromise.
Plaintiff also wanted a more-true-to-the-Restatement instruction. The trial court used a more, um, complicated version. But because the jury found the defendants negligent, plaintiff can't show any phrasing difference harmed him. And so the majority concludes that there's no reversible error and no abuse of discretion in denying a new trial.
Chief Justice Reiber dissents. There was a juror question about the instructions (the one plaintiff asked to be fixed) and basically the trial court just said "your verdict has to be unanimous." Then, just under an hour after flagging that they're divided on liability, the jury comes back with a split-fault verdict, full economics, and very low noneconomic damages. You don't need to be a mathmagician to figure that out. Given the evidence of two surgeries and corroborated testimony about serious pain and disability, Reiber reads the $5K noneconomic number as classic compromise. That kind of compromise, he says, undermines the whole verdict. The dissent would reverse and remand for a new trial. Tiedemann v. Wheeler, 2026 VT 31.
Lastly, we have a relatively straightforward case that stands for the idea that probation conditions do not supplant a relief-from-abuse order.
Wife obtained a one-year relief-from-abuse (RFA) order against her husband after the court found he had repeatedly struck her and placed her in fear of imminent harm. Husband later violated that order and, in a separate criminal case, pled guilty to violating it. He received four years of probation with conditions barring contact, abuse, harassment, or violent/threatening conduct toward her. As the RFA was about to expire, the wife asked the family court to extend it, saying he continued to stalk her and she remained afraid; the court agreed she still needed protection but denied the extension, reasoning that his probation conditions gave her the same or greater protection than an RFA order, so an extension wasn’t "necessary."
SCOV reverses, holding that this is an abuse of discretion because probation conditions do not substitute for an RFA order and serve a different purpose. SCOV explains that the Abuse Prevention Act is victim-focused, designed to give the victim direct, immediate, and easily modified protection, including quick enforcement through warrantless arrest when an RFA is violated. Probation, by contrast, is offender-focused and primarily rehabilitative, with conditions modifiable only by the court, probation officer, or offender—not the victim—and with enforcement that depends on a probation officer, making it more indirect and slower. Because the trial court found the wife still needed protection but relied on the husband's probation conditions instead of the victim-centered RFA mechanism, SCOV concludes that reliance was untenable and remands, clarifying that probation conditions cannot take the place of an RFA order. Townsend v. Townsend, 2026 VT 32.
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