Volume 157 — Vermont Reports

<bold>1. Appeal and Error — Extraordinary Relief — Generally</bold> Extraordinary relief is available where relief would have been available at common law through a writ of mandamus, prohibition, or quo warranto. <bold>2. Mandamus — Generally</bold> Where the act complained of involves judicial discretion, mandamus is appropriate only in those exceptional cases where judicial power is usurped or the court clearly abuses its discretion. <bold>3. Depositions and Discovery — Availability of Relief —</bold> <bold>Extraordinary Relief</bold> Only in exceptional cases is extraordinary relief an appropriate means for challenging a pretrial discovery order on the ground of abuse of discretion. <bold>4. Depositions and Discovery — Availability of Relief —</bold> <bold>Generally</bold> Under rule governing discovery in civil matters, trial court has an affirmative duty to limit discovery so as to protect parties from annoyance and excessive expense. V.R.C.P. 26(b)(1). <bold>5. Depositions and Discovery — Discretion of Trial Court —</bold> <bold>Particular Cases</bold> Superior court abused its discretion by refusing to close discovery long after passage of discovery deadline it set in two related product liability cases, where it was undisputable that plaintiff had ample opportunity to obtain information and that defendant had been unduly burdened by plaintiff's discovery requests. <bold>6. Judgments — Summary Judgment — Particular Cases</bold> On petition for extraordinary relief from superior court's refusal to close discovery and grant summary judgment in favor of defendant, in two related product liability cases pending more than five years, court would decline to direct superior court to enter summary judgment in absence of complete record; rather, superior court would be directed to close discovery and rule on defendant's motion for summary judgment.

<bold>1. Sexual Assault — Elements — Generally</bold> Time is not an essential element of the crime of sexual assault; the state may charge that an offense occurred on a nonspecific date, and variance between the date alleged and the date demonstrated by the proofs does not result in acquittal. <bold>2. Criminal Law — Elements of Offense — Time</bold> Fact that a defendant raises an alibi defense does not make time an essential element of an offense; however, assertion of a defense that makes time critical magnifies the importance of an instruction on the time of the offense. <bold>3. Trial — Instructions — Date of Offense</bold> Where state presents a specific date as the date of an offense, and defendant raises a defense based on that date, jury's consideration of defendant's guilt should be restricted to that date, and it is improper for court to decline to instruct jury they must find offense to have occurred on that date. <bold>4. Sexual Assault — Instructions — Particular Cases</bold> At trial for sexual assault, where state's amended information and evidence, including testimony of complaining witness, was that offense occurred on specific date, and defendant raised defense based on this date and presented witnesses who testified offense could not have occurred as alleged, it was error for court to decline to instruct jury they must find offense occurred on that date; and error was not harmless where complainant's testimony of inconsistencies concerning date provided basis for jury to conclude offense occurred on a different date, and prosecutor's statement inviting jury to conclude offense occurred on a different date amplified prejudicial effect of court's refusal to give date instruction.

<bold>1. Judgments — Relief From — Generally</bold> Central theme of provision of rule allowing for relief from a final order for "any other reason justifying relief" is the prevention of hardship. V.R.C.P. 60(b)(6). <bold>2. Judgments — Relief From — Judicial Review</bold> Grant of relief from judgment under provision of rule allowing for relief from a final order for "any other reason justifying relief" is not subject to appellate review unless it clearly and affirmatively appears from the record that discretion was withheld or otherwise abused. V.R.C.P. 60(b)(6). <bold>3. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> Where Labor Relations Board's order awarding grievant back pay was based on a stipulation that included a concession by grievant to calculation of interest on the basis of net pay, but that concession was made in the context of an aggregate amount of back pay which was based on a mistaken calculation, to the extent the stipulation constituted a waiver of a claim to interest on gross back pay, the waiver was conditional and was discharged by the state's motion to reopen after it discovered the mistake. <bold>4. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> Labor Relations Board did not err in considering issues of equity raised by both parties on remand of order awarding grievant back pay. V.R.C.P. 60(b)(6). <bold>5. Appeal and Error — Findings — Tests for Overturning</bold> On the merits, supreme court will not disturb Labor Relations Board's findings unless they are clearly erroneous. <bold>6. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> It was within Labor Relations Board's discretion to use the gross amount of back pay as a starting point for determining interest on grievant's back pay award, since that was the amount which employer failed either to pay grievant or to withhold on his account. <bold>7. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> In formulating remedial orders, Labor Relations Board has wide discretion as to the method of back pay calculation, and reversal is only warranted if the method chosen was so irrational as to amount to an abuse of discretion. <bold>8. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> In formulating back pay awards, Labor Relations Board is not compelled to consider adjustments which themselves are clouded by uncertainty<page_number>Page 151</page_number> and which need not be considered to yield a result that is fair and equitable under all the circumstances of the case. <bold>9. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> Proper remedy for improper discharge from employment includes an award of back pay and other emoluments from the date of the improper discharge less sums of money earned or that without excuse should have been earned since that date. <bold>10. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> If an employee engages in self-employment after improper discharge, the net profits of the self-employment may be chargeable against a back pay award. <bold>11. Labor Relations — Wrongful Discharge — Back Pay Awards</bold> Where Labor Relations Board did not reduce grievant's back pay award by the $14,000 he received upon sale of his share of a business started after his improper discharge, but gave no reasons for its conclusion that the $14,000 was not money earned from self-employment, the case was reversed and remanded for further findings regarding the nature of the $14,000.

<bold>1. Sales — Mixed Sales and Services Contracts — Applicability of</bold> <bold>Uniform Commercial Code</bold> Uniform Commercial Code applied to sale of computer system where the agreement between the parties was predominantly one for goods.<page_number>Page 157</page_number> <bold>2. Sales — Rejection of Goods — Waiver</bold> Purchaser of computer system who agreed to substitution of a different computer for the one promised by seller waived his right to reject that component. 9A V.S.A. §§ 2-601(a), 2-606(1)(a). <bold>3. Sales — Rejection of Goods — Return of Goods</bold> Purchaser of computer system who demanded return of his money about a month after a printer which did not conform to the contract was delivered, but did not offer to return the equipment, did not reject the system. 9A V.S.A. §§ 2-601(a), 2-606(1)(a). <bold>4. Sales — Acceptance — Revocation</bold> Purchaser of computer system who knew of nonconformities at the time he accepted the system, did not discover any additional, post-delivery nonconformities, and did not notify seller that his acceptance was revoked did not revoke acceptance of the system. <cross_reference>9A V.S.A. § 2-608</cross_reference>. <bold>5. Sales — Warranties — Title</bold> Seller of computer system who supplied purchaser with nonoriginal copies of promised computer programs violated warranty of title as to those programs. <cross_reference>9A V.S.A. § 2-312</cross_reference>(1)(a).

<bold>1. Motor Vehicles — Operation Under the Influence — Evidence</bold> In trial for driving under the influence, death resulting, although the evidence of causation, the nexus between defendant's intoxicated state and the collision, was not strong, taken in the light most favorable to the State and excluding modifying evidence, there was sufficient evidence to fairly and reasonably support a finding of proximate cause beyond a reasonable doubt. <cross_reference>23 V.S.A. § 1210</cross_reference>. <bold>2. Motor Vehicles — Operation Under the Influence — Evidence</bold> At trial for driving under the influence, death resulting, where area traversed by victim was unobstructed, and defendant did not slow down or take evasive action before impact, and ran a red light immediately before reaching the place of accident, and defendant showed usual signs of intoxication after the accident, the inferences to be drawn from all the facts and circumstances were that defendant's intoxication caused him to be careless in failing to be on the lookout for pedestrians crossing the road, and, in addition, caused him to react belatedly to avoid someone in harm's way. <cross_reference>23 V.S.A. § 1210</cross_reference>. <bold>3. Motor Vehicles — Operation Under the Influence — Evidence</bold> At trial for driving under the influence, death resulting, where evidence was admitted that victim had made several suicide attempts during a two-week period before the accident and that her behavior contributed in large measure to her demise, but evidence pointed to fault on defendant's part in failing to see and appreciate the decedent's plight and to take defensive measures to avoid hitting her, the jury could reasonably have concluded that defendant's actions were <italic>the</italic> cause of death, not merely <italic>a</italic> cause of death. <cross_reference>23 V.S.A. § 1210</cross_reference>.

<bold>1. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Where defendant in post-judgment trustee process case failed to raise service of process issues before superior court, these arguments could not be asserted for the first time on appeal. <bold>2. Judgments — Enforcement of Judgments — Trustee Process</bold> A judgment debtor may claim an exemption from attachment more than once, even against the same creditor, if debtor does not have funds in his possession at any one time in excess of amount of his exemption. <cross_reference>12 V.S.A. § 2740</cross_reference>(7). <bold>3. Judgments — Enforcement of Judgments — Trustee Process</bold> Trial court in post-judgment trustee process case erred in holding that defendant could not assert same attachment exemption in two separate<page_number>Page 600</page_number> actions, where both plain language and purpose of governing statute were at odds with this conclusion, and it would be irrational to allow specific exemptions against only the first of several attaching creditors. <cross_reference>12 V.S.A. § 2740</cross_reference>. <bold>4. Judgments — Enforcement of Judgments — Trustee Process</bold> Purpose of attachment exemptions statute is to afford debtors protection from the loss of property specified by Legislature as essential to living and working. <cross_reference>12 V.S.A. § 2740</cross_reference>. <bold>5. Judgments — Enforcement of Judgments — Trustee Process</bold> Trial court in post-judgment trustee process case erred in denying defendant benefit of additional exemption for "unused amount" of other enumerated exemptions, even though attachment did not cover any of the enumerated items, where nothing on face of governing provision required ownership of property or interest for which exemption was claimed. <cross_reference>12 V.S.A. § 2740</cross_reference>(7). <bold>6. Judgments — Enforcement of Judgments — Trustee Process</bold> Trial court in post-judgment trustee process case correctly concluded that defendant's funds in possession of insurance company were not "bank deposits" or "deposit accounts," such that a portion of the funds would be exempt from attachment under governing statute, where insurance company's obligation arose from contract with third party whom defendant successfully sued, and where defendant never deposited any sums with insurance company, and company never undertook any depositary relationship with defendant. <cross_reference>12 V.S.A. § 2740</cross_reference>(15).