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
.