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By: Elizabeth Kruska
We here at HQ decided I’d handle last week’s opinions. There were three. By the time I got to it, SCOV snuck in a fourth. I can’t tell if I’m complaining. I do know that I’m summarizing four opinions. Buckle up, buttercups, this is going to be a long post.
State v. Sartwell, 2026 VT 46 is a short bail appeal opinion where SCOV affirmed a trial court’s hold without bail (HWOB) order. In short, here’s what happened. Mr. Sartwell was charged in 2023 with some felony offenses. Because of prior felony convictions, the state also included habitual offender enhancement notices with respect to the new felony allegations. This makes him eligible to be held without bail, since the maximum possible penalty could be a life sentence. In fact, the presumption is that such a defendant be held without bail. It’s then up to the defendant to persuade the court to set bail or conditions of release. The trial court has a lot of discretion to decide if it’s persuaded.
He was initially ordered held without bail. He was “erroneously released” and rearrested about a year later and finally held without bail. In May 2026, after being held for a year and a half, he moved to be released. He argued that he had secured a treatment bed at a facility in New Hampshire, and that he was very different now than he was at the time of his initial arrest. The trial court took evidence, wasn’t persuaded, and continued to hold him. SCOV affirms.
The State sought to have the bail appeal dismissed. SCOV denied the State’s requests. But, it went on to examine the court’s findings and found that it did not abuse its discretion in continuing with the hold without bail order.
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Up next is Ford v. Polomsky, 2026 VT 44. This is an appeal in a medical battery case. In brief, Mr. Ford was hospitalized and needed heart surgery. The doctor reviewed a pre-printed form about the procedure, and also included some handwritten notes. Mr. Ford signed the form. The doctor then performed the procedure, which included a particular part of the surgery involving an atrial appendage clip. That was written on the form. Mr. Ford later sued, saying he authorized the surgery but not the appendage clip. The doctor moved to dismiss, and the court granted the motion. Mr. Ford appealed, and SCOV affirmed.
SCOV reviews a motion to dismiss de novo and uses the same standard as the trial court. That is, it will uphold the trial court if it is beyond doubt that there are no facts or circumstances that would entitle the plaintiff to relief. Even though we have fairly liberal pleading rules, defendants can protect themselves from litigation with motions to dismiss if it does not appear there is any cognizable claim upon which a plaintiff can prevail.
SCOV looks at the tort of medical battery. That happens if medical treatment was performed without consent, or if what was performed was significantly different than the consent given. Mr. Ford tried to argue that he didn’t really understand what the doctor explained to him with respect to the atrial clip. He didn’t disagree that he signed the form and that he gave consent, and he didn’t argue that the procedure was different than what was on the form, just that it wasn’t what he understood. SCOV points out this might be a different problem, but it wasn’t medical battery.
So, since there was no claim made upon which relief could be granted, SCOV affirmed the trial court’s dismissal of the case.
Chief Justice Reiber dissented. He felt there actually was room for relief for the plaintiff to pursue his claim. We’ve got pretty liberal pleading standards, and to dismiss on the pleadings here, when this could have gone forward was incorrect, in his view.
Justice Drescher also dissented because why not. He writes that the case could have gone forward because although there was much reliance on the consent form, it should have been clearer and described the multiple procedures needed to achieve the surgery. He also points out that if the parties worked on the case and then ultimately someone moved for (and was granted) summary judgment, then that’s fine, but it would have at least proceeded past the pleading stage.
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Moving on, because there are four opinions and none of us are getting any younger, we’ve got Wich v. Corcoran, (2026 VT 47) up next. This case starts out with complicated two-state divorce facts, but at heart is a partition action. The parties ultimately got divorced in Florida in 2007 while they still owned a house in Strafford, Vermont. The Florida court assigned percentage ownership to each party: 49.6% plaintiff and 50.4 % defendant. The divorce order also required the plaintiff to pay half the mortgage payments and also attorney fees. That year the defendant moved back and lived in the house, and the parties agreed that the plaintiff wouldn’t assert any property rights until their youngest child graduated college. That happened in 2023.
Plaintiff then filed a partition action, seeking his interest in the property. Defendant had been paying all the expenses for the property despite the ruling in the divorce order. The trial court considered doing this, but thought it could order reimbursement only for the six years prior to filing the action, because the general statute of limitations is 6 years. The court then awarded the property to Defendant, subject to her ability to buy out the plaintiff’s interest, and she appealed.
SCOV reversed. In a partition action the court reviews for abuse of discretion. But since this involves a statute of limitations question, that is reviewed de novo. Here’s the problem: a partition action is an equitable remedy, which requires the court to consider all relevant circumstances to ensure a just result. But because the partition statutes should be construed to give the parties as equitable an outcome as possible, that a question regarding contribution credits is not subject to that statute of limitations.
The court has to consider monetary contributions, whether there was ouster (and if that should be off set) and any other equities from costs arising from partition. And contribution is different than damages – it’s not as if someone suffered a harm as a result of paying for property they own; they would have paid those costs anyway. If there’s a co-tenant in the property, that person would also have costs. And in looking at the statute of limitations question, that wouldn’t apply at all in a partition because the costs are ongoing from the time the co-tenancy is created, unless the aggrieved co-tenant had been excluded from the property.
So, this gets reversed for the court to recalculate credits owed by the plaintiff for the time he did not pay costs. There was also an order that the defendant pay ongoing expenses until the time of the sale, and that was upheld, since the property was to become the defendant’s sole property anyway.
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Last we’ve got Perrin v. Windham Southeast Supervisory Union et al, 2026 VT 48. Here, the plaintiff was a high school principal who was terminated from his position after a termination procedure with the school board. He attacked the Board’s decision in the Civil Division, which upheld the Board’s decision. He appealed to SCOV, challenging sufficiency of the evidence and arguing there were constitutional issues. SCOV also affirms.
Here are the basic facts: the school board got reports of staff misconduct, so it hired an independent attorney to investigate. That investigation turned up reports by a student and an employee against the principal. The principal was placed on leave. Allegations were formally made and the principal was able to respond. He was terminated, which he appealed to the Board. At this point he received certain discovery. A 20-hour hearing was held over six sessions, and the Board upheld the termination. Note: there were lots of facts in this opinion. I’m not recounting them here – go read them if you’d like more background.
The plaintiff-principal then filed an action in the Civil Division challenging the Board’s determination. He also asserted breach of contract, wrongful termination, denial of due process, intentional infliction of emotional distress, and defamation claims. The Board moved for summary judgment, which was granted. He appeals that to SCOV.
We all know the standard for summary judgment by now so well we could sing it. Summary judgment is properly granted if the movant shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
First, SCOV examines the claim that the pre-termination process was constitutionally inadequate. The Board followed the termination procedure statute. The plaintiff was provided with written notice of the charges, which he denied in writing. There was then a lengthy evidentiary hearing where both sides presented evidence. SCOV says this is plenty of process. Plaintiff’s argument was that although he got a summary of the complaints, he didn’t get the actual documents. He also argued that the internal investigation focused only on witnesses who were adverse to him. SCOV rules that he got enough information and by the time of the hearing knew what the allegations were and could (and did) have his own witnesses testify.
Plaintiff also raised an argument regarding discovery and argued that the Board members were biased. In short, this gets denied because plaintiff didn’t seek disqualification of any Board member before the hearing or show actual bias. Structural bias isn’t a sufficient argument; even though the Board holds a dual role of investigator and adjudicator, this does not deprive someone in the plaintiff’s position of due process.
Plaintiff also challenged the sufficiency of the Board’s findings and conclusions. SCOV reviews factual findings with the clearly erroneous standard, and found it was “quite sufficient” to support the findings.
Last, Plaintiff challenged the finding that there was “just cause” to terminate his employment. SCOV disagrees and said there was sufficient cause.
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