Volume 140 — Vermont Reports

<bold>1. Limitation of Actions — Statutes — Generally</bold> It is a legislative privilege to enact special statutes of limitations when deemed appropriate. <bold>2. Limitation of Actions — Statutes — Construction</bold> Where there is a conflict between a general statute of limitations and a specific statute of limitations, the latter will prevail. <bold>3. Limitation of Actions — Statutes — Purpose</bold> The purpose of the provision of the Uniform Commercial Code setting out the statute of limitations for the breach of sales contracts was to take sales contracts out of the general laws limiting the time for commencing contractual actions and to select a four-year period as more appropriate to modern business practice. 9A V.S.A. § 2 — 725(1). <bold>4. Limitation of Actions — Sales Contracts</bold> Where action was brought for breach of express and implied warranties of merchantability and fitness for use arising from contract for sale of dairy cattle; there was privity of contract; the contract involved a bonded cattle dealer and a dairy farmer, both "merchants" within the meaning of the Uniform Commercial Code; and the compensatory damages sought were, under the Uniform Commercial Code, potentially recoverable for such a breach of contract, the cause of action fell squarely within the scope of the Uniform Commercial Code and was governed by its four-year statute of limitations for breach of sales contracts rather than by the general three-year statute of limitations. 9A V.S.A. § 2 — 725(1); <cross_reference>12 V.S.A. § 512</cross_reference>(5).<page_number>Page 2</page_number> <bold>5. Limitation of Actions — Tolling of Statute — Concealment of</bold> <bold>Cause of Action</bold> In action for breach of express and implied warranties arising from sale of dairy cattle in which plaintiffs also alleged fraudulent misrepresentation as to the condition of the cattle on the part of the defendants, the question of whether the statute of limitations was tolled by the fraudulent concealment of the defendants was a question for the trier of fact, and it was therefore improper, as a matter of law, to grant summary judgment for the defendants on the ground that the action was barred by the statute of limitations. <cross_reference>12 V.S.A. § 555</cross_reference>.

<bold>1. Courts — Probate Courts — Jurisdiction</bold> A probate court clearly has jurisdiction to order an accounting by the trustee under a will. 14 V.S.A. ch. 105. <bold>2. Trusts — Charitable Trusts — Beneficiaries</bold> The beneficiary of a charitable trust under a will has a fiduciary duty to use the funds as directed by the settlors of the trust. <bold>3. Courts — Probate Courts — Jurisdiction</bold> A court of probate has a special and limited jurisdiction created, and restricted, by statute. <bold>4. Courts — Probate Courts — Jurisdiction</bold> A probate court may act only when clearly bestowed with the power to act; nothing is to be presumed in favor of its jurisdiction. <bold>5. Courts — Probate Courts — Jurisdiction</bold> Statute providing that probate court may hear and determine in equity matters relating to trusts does not empower probate court to deal with all matters relating to testamentary trusts; the statute merely allows a probate court to invoke certain equitable remedies required to deal adequately with those matters properly before it, matters which are restricted to overseeing the affairs of officials, such as testamentary trustees and executors, appointed by the court itself, and property in the trustees' hands. <cross_reference>14 V.S.A. § 2327</cross_reference>. <bold>6. Courts — Probate Courts — Jurisdiction</bold> The fiduciary duty of the beneficiary of a charitable trust under a will to use the funds as directed by the settlors of the trust does not give rise to jurisdiction in the probate court to demand an accounting for the expenditure of those funds. <bold>7. Courts — Probate Courts — Jurisdiction</bold> A probate court has no power to require a beneficiary of a charitable trust under a will to account for the monies paid to it by the trustee of the estate involved.

<bold>1. Limitation of Actions — Statutes — Tax Disputes</bold> Action to void tax collector's deed to property was barred by statute of limitations where the action was commenced more than one year after the levy. 32 V.S.A. §§ 5294(4), 5295(2). <bold>2. Taxation — Tax Sales — Notice</bold> Where notice of levy for collection of delinquent real estate taxes was given to nonresident owner by registered and first class mail, by posting, locally, in a public place, and by publication for two<page_number>Page 20</page_number> consecutive weeks in the local newspaper, in the context of the entire notice procedure, failure to publish notice for a third consecutive week in the local newspaper did not constitute a jurisdictional defect, negating authority to effectuate the tax sale. <cross_reference>32 V.S.A. § 5252</cross_reference>.

<bold>1. Taxation — Appraisal and Assessment — Burden of Proof</bold> In an appeal taken to board of appraisers, there is a presumption that the appraisal is valid, and the property owner has the burden of going forward with evidence to overcome that presumption. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>2. Taxation — Appraisal and Assessment — Burden of Proof</bold> The presumption of validity attaching upon appeal of a town's evaluation of property is overcome when credible evidence is introduced fairly and reasonably indicating that the property was assessed at more than the fair market value or that the listed value exceeded the fair market value applied generally to property within the community; upon the introduction of such evidence, the presumption disappears and becomes <italic>functus</italic> <italic>officio.</italic> <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>3. Taxation — Appraisal and Assessment — Burden of Proof</bold> Upon appeal of appraisal, board of appraisers is not required to sit as trier of fact and determine whether facts introduced to overcome presumption of validity of appraisal of property are more believable than the facts supporting the assessment; the standard for evaluation of the facts sought to be used to overcome the burden is not one of credibility, requiring a subjective evaluation of the evidence, but rather of admissibility, requiring evaluation of whether the fact offered in proof affords a basis for a rational inference of the fact to be proved. <cross_reference>32 V.S.A. § 4467</cross_reference>.<page_number>Page 143</page_number> <bold>4. Taxation — Appraisal and Assessment — Burden of Proof</bold> Upon appeal of property valuation, once presumption of validity of the appraisal disappears, the burden of persuasion remains on the taxpayer as to all contested issues. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>5. Taxation — Appraisal and Assessment — Burden of Proof</bold> On appeal of property valuation, once relevant evidence challenging the assessment has been introduced to overcome the presumption of the validity of the appraisal, in order to prevail the town must produce evidence to justify the appraisal, which can be done either by demonstrating that the method of appraisal substantially complied with the relevant constitutional and statutory requirements or by substantiating the appraisal with independent evidence relative to the fair market value of the subject property and the listed value of comparable properties within the municipality. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>6. Administrative Law — Findings — Support</bold> Findings of an administrative agency should explicitly state the material facts and indicate how the ultimate conclusion was reached.

<bold>1. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Where a jury is the trier of fact, absent a motion for judgment of acquittal at the close of all the evidence, or after a verdict of guilty, the issue of sufficiency of the evidence as a whole to support the verdict remains unpresented to the trial court for consideration, and having never been presented for determination, the issue is not preserved for appellate review. <bold>2. Pleading — Motion for Acquittal — Necessity</bold> In a nonjury trial the law does not require the criminal defendant to take the unnecessary step of moving for a judgment of acquittal in order to preserve his right to question the sufficiency of the evidence on appeal. <bold>3. Pleading — Motion for Acquittal — Necessity</bold> In a nonjury trial, so long as the appeal is timely filed, the sufficiency of the evidence in a criminal case tried by the court<page_number>Page 473</page_number> may be considered on appeal even though no motion for judgment of acquittal was made, or one made was not renewed. <bold>4. Pleading — Motion for Acquittal — Necessity</bold> The plea of not guilty in a criminal case tried by the court asks the court for a judgment of acquittal, and a motion to the same end is not necessary. <bold>5. Appeal and Error — Evidence — Sufficiency of Evidence</bold> Where defendant claimed on appeal that the evidence was insufficient to support his conviction in a nonjury trial, the issue of the sufficiency of the evidence was preserved for review even though he failed to move for a judgment of acquittal below. <bold>6. Evidence — Intoxication — Opinions</bold> Where alcohol is involved, a lay person, on the basis of his personal observations, is competent to give his opinion as to the sobriety of an individual because it takes no special scientific knowledge or training to recognize intoxication. <bold>7. Evidence — Expert Evidence — Drugs</bold> Since drugs other than alcohol can produce a confusing array of symptoms which cannot be sorted out without specialized training, a nonexpert witness may not express his opinion that a defendant in a criminal case was under the influence of drugs based solely on his observation of that defendant. <bold>8. Motor Vehicles — Operation Under the Influence — Elements</bold> When drugs other than alcohol are involved, the statute prohibiting the operation of a vehicle under influence of intoxicating liquor requires not only that the driver be under the influence but also that the influence be to a degree which renders him incapable of driving safely. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(3). <bold>9. Evidence — Expert Exidence — Drugs</bold> An arresting officer or other witness may give an opinion as to whether a defendant is under the influence of drugs and to a degree rendering him incapable of driving safely only when qualified as an expert to determine these issues from the symptoms displayed. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(3). <bold>10. Evidence — Expert Evidence — Drugs</bold> Absent the expertise necessary to determine whether a defendant is under the influence of drugs and to a degree rendering him incapable of driving safely, a witness may testify only as to what he in fact observed, and the connection between the symptoms observed and the influence of a drug must then be made by a qualified expert. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(3). <bold>11. Motor Vehicles — Operation Under the Influence — Evidence</bold> Where, during the trial of defendant charged and convicted of operating a motor vehicle under the influence of drugs, police<page_number>Page 474</page_number> officer testified to a number of symptoms displayed by the defendant at the time of the alleged incident, but no expert testimony was produced to link his symptoms with marijuana consumption or to prove that the quantity allegedly consumed would produce an effect which rendered him incapable of driving safely, the conviction would be overturned since the connection between the symptoms observed and the influence of a drug must be made by a qualified expert. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(3).

<bold>1. Motor Vehicles — Alcohol Tests — Refusal To Take Test</bold> The legislature has made the sanction of license suspension available for refusal to take one of the specified tests measuring the alcoholic content of blood or breath whether or not there is an arrest, and an arrest is not a necessary prerequisite to its validity. <cross_reference>23 V.S.A. § 1202</cross_reference>. <bold>2. Motor Vehicles — Alcohol Tests — Necessity for Arrest</bold> The statute governing consent to blood alcohol tests gives any person who is requested to submit to a test a time period of thirty minutes to decide whether or not to undergo the intoximeter test, and where the police elected not to exercise any custodial authority over the person during that period, such as that generated by the procedure of arrest, their authority over the person is correspondingly limited. <cross_reference>23 V.S.A. § 1202</cross_reference>. <bold>3. Motor Vehicles — Alcohol Tests — Presumptions and Inferences</bold> The statute governing consent to blood alcohol tests presumes that a defendant will remain in the presence of the police long enough for them to carry out the provisions of the testing procedure. <cross_reference>23 V.S.A. § 1202</cross_reference>. <bold>4. Arrest — Without Warrant — Generally</bold> The reduction of any defendant to custody, giving the police authorized control over the person, is a serious liberty restriction governed by stated legal prerequisites. <bold>5. Arrest — Without Warrant — Generally</bold> When the police exercise control over a person in the absence of an arrest, such control is either treated as unauthorized, or as a de facto arrest, whichever best protects the interests of the defendant and society. <bold>6. Arrest — Without Warrant — Generally</bold> Where a defendant who was charged with driving under the influence and who remained at the police station without being arrested, while being processed by the police preliminary to being asked for a breath test, was refused the right to call her boyfriend, such a refusal would be considered an unauthorized restraint on the defendant, absent any indication that the call was sought in bad faith or with a view toward disrupting authorized police activity.<page_number>Page 632</page_number> <bold>7. Motor Vehicles — Alcohol Tests — Refusal To Take Test</bold> By providing for counsel and time for reflection in the statute governing consent to blood alcohol tests, the legislature demonstrated its concern that any refusal to be tested not be lightly decided, and to allow unauthorized police action to cloud the otherwise voluntary nature of that decision to refuse testing would be inconsistent with that concern. <cross_reference>23 V.S.A. § 1202</cross_reference>. <bold>8. Motor Vehicles — Alcohol Tests — Refusal To Take Test</bold> Since the impact of actions seen as coercive or restrictive is almost impossible to measure after the fact, a mere demonstration that such actions occurred must be treated as creating a flaw in the procedure relative to a refusal hearing under the statute governing refusal to submit to a blood alcohol test and rendering evidence of that refusal inadmissible at trial. <cross_reference>23 V.S.A. § 1205</cross_reference>. <bold>9. Motor Vehicles — Alcohol Tests — Refusal To Take Test</bold> Where the defendant, who was charged with driving under the influence and who remained at the police station without being arrested, while being processed by the police preliminary to being asked for a breath test, was refused the right to call her boyfriend until after the statutory thirty minute waiting period, such refusal constituted an unauthorized restraint on the defendant sufficient to cloud the proceedings relating to the defendant's refusal to submit to the test, rendering evidence of that refusal inadmissible on trial, and was cause for remand for a new trial without the inadmissible evidence. 23 V.S.A. §§ 1202, 1205. <bold>10. Appeal and Error — Questions Considered on Appeal — Issues on</bold> <bold>Remand</bold> The supreme court will review a second issue raised on appeal which need not be decided to dispose of the appeal where it will probably recur on retrial. <bold>11. Statutes — Construction and Application — Legislative Intent</bold> It is an axiom of statutory interpretation that the retention of prior language, which has a history of meaning ascribed to it by statutory interpretation or usage reaffirmed by court decision, in an amended statute, is taken to mean that the legislature intended to retain that interpretation. <bold>12. Motor Vehicles — Operation Under the Influence — Elements</bold> The meaning of "under the influence" in the statute setting forth the offense of operating a vehicle under the influence of intoxicating liquor developed in Vermont case law at a time before the use of chemical tests of any kind, and its relevance has always been to physical manifestations capable of observation by a witness and reported by testimony. <cross_reference>23 V.S.A. § 1201</cross_reference>(a). <bold>13. Motor Vehicles — Operation Under the Influence — Evidence</bold> Observable behavior indicating a loss of full control over the<page_number>Page 633</page_number> faculties of mind and body is required to support a claim of "under the influence." <cross_reference>23 V.S.A. § 1201</cross_reference>(a). <bold>14. Motor Vehicles — Operation Under the Influence — Evidence</bold> Except in cases where the evidence deals solely with the chemical level of alcohol, a violation of the statute prohibiting the operation of a vehicle under the influence of intoxicating liquor is established by observable behavior indicating a loss of full control over the faculties of mind and body, and with this a witnessed fact, the measure of that loss is not material. <cross_reference>23 V.S.A. § 1201</cross_reference>(a). <bold>15. Motor Vehicles — Operation Under the Influence — Elements</bold> Phrase "to a degree which renders him incapable of driving safely" in the clause of the statute prohibiting the operation of a motor vehicle by a person under the influence of a drug or of alcohol and another drug does not modify the phrase "under the influence" in the clause of the statute prohibiting the operation of a motor vehicle by a person under the influence of intoxicating liquor; the latter clause requires observable behavior indicating a loss of full control but does not require a measure of that loss. <cross_reference>23 V.S.A. § 1201</cross_reference>(a). <bold>16. Motor Vehicles — Operation Under the Influence —</bold> <bold>Instructions</bold> In prosecution for operation of a motor vehicle under the influence of intoxicating liquor, the trial court properly charged the jury that the phrase "under the influence of intoxicating liquor" as used in the statute prohibiting the offense means "under the influence in the slightest degree" where the evidence did not include the chemical level of alcohol, but such a charge can be applied only in cases where testimony supports a claim of loss of control of physical and mental faculties and not where the evidence deals solely with the chemical level of alcohol. <cross_reference>23 V.S.A. § 1201</cross_reference>(a).