Stephan Palmer, Sr.
v.
Mark Furlan and State of Vermont
On
Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
David
J. Williams of Jarvis, McArthur & Williams, Burlington,
for Plaintiff-Appellant.
Robert
G. Cain of Paul Frank Collins P.C., Burlington, for
Defendant-Appellee Furlan.
Thomas
J. Donovan, Jr., Attorney General, and David R. Groff,
Assistant Attorney General, Montpelier, for
Defendant-Appellee State.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
SKOGLUND, J.
¶
1. In this matter, the trial court entered summary judgment
on behalf of appellee, Attorney Mark Furlan. Appellant,
Stephan Palmer, Sr., appeals this order, arguing that the
trial court erred when it determined that appellant's
claim failed as a matter of law on causation grounds. We
conclude that summary judgment was appropriate and affirm.
¶
2. Appellant, while incarcerated, filed a petition for
postconviction relief (PCR). Attorney Furlan, an ad hoc
public defender, was assigned to represent appellant in the
PCR proceedings. The petition was litigated until the parties
agreed to settle, arriving at a proposed stipulation to
modify appellant's sentence. The stipulation did not
address the merits of the PCR claim. Attorney Furlan filed
the stipulation motion with the PCR court on November 16,
2015. Two days later, the PCR court entered an order stating
that it "will hold a status conference with counsel for
the parties before entering a decision and order." The
next day, the court clerk issued a notice of hearing at the
PCR court's direction, scheduling the status conference
for December 17. The status conference was held as scheduled.
Six days later, on December 23, the PCR court granted the
parties' stipulation motion-the entry order was
immediately emailed to the criminal division; the criminal
division issued an amended mittimus to the Commissioner of
Corrections the same day; and the following day, the
Department of Corrections received the amended mittimus and
recalculated appellant's sentence in accord with the PCR
court's order amending the sentence. Appellant was
released from incarceration on December 24.
¶
3. Appellant then filed a civil action against Attorney
Furlan, [1] alleging legal malpractice. As framed by
appellant, the negligence alleged in this case is as follows.
Attorney Furlan filed the stipulation with the PCR court in a
timely manner. However, the stipulation on its face did not
make clear that the sentence modification would result in
appellant's immediate release from prison upon approval
by the PCR court and amendment of the mittimus by the
criminal division. Not knowing that immediate release was at
stake, the PCR court took more time than it would have
otherwise in scheduling a hearing and approving the
stipulation. Although the PCR court ultimately did approve
the stipulation which led to appellant's release,
appellant characterizes the length of incarceration between
when he posits he would have been released if Attorney Furlan
had more aggressively attempted to get the PCR court to act
in an expedited manner and when he was actually released as
wrongful and the basis for his damages.
¶
4. After discovery, Attorney Furlan moved for summary
judgment on the grounds that: (1) Attorney Furlan was
statutorily immune from appellant's claims under 13
V.S.A. § 5241; (2) Attorney Furlan lacked the authority
to require the PCR court to expedite the stipulation motion;
(3) Attorney Furlan had no legally cognizable duty to require
the PCR court to expedite the stipulation motion; (4)
appellant could not establish a causal link between the
alleged breach of duty and appellant's claimed damages;
and (5) appellant could not establish that he was
"wrongfully incarcerated and unlawfully deprived of his
liberty," and, as such, could not prove damages.
¶
5. The trial court granted Attorney Furlan's motion for
summary judgment.[2] Accepting for the sake of argument that
appellant satisfied both the duty and breach elements of his
negligence claim-that Attorney Furlan had some obligation to
attempt to speed up the PCR court's actions and that he
failed to do so-the trial court concluded that
appellant's negligence "claim nevertheless fails as
a matter of law on causation grounds." It reasoned that
appellant's "prediction, and his expert's
supposition, that any reasonable trial judge would have
advanced the case on the docket in these circumstances (much
less approve the stipulation) is simply speculation about how
judges make decisions and what decisions they reasonably
would have made in these circumstances."
¶
6. On appeal, appellant argues that this Court should
recognize a presumption that Vermont judges will comply with
Vermont's Code of Judicial Conduct Canon 3(B)(8)'s
requirement that they "dispose of all judicial matters
promptly, efficiently and fairly." A.O. 10 § 3.
And, by recognizing this presumption and applying it to this
case, appellant argues that the record supports reversal
because: (1) the PCR court ultimately approved the
stipulation motion; and (2) "any reasonably competent
and conscientious Vermont judge would have done so as soon as
[they were] aware of its implications, i.e., that [a]ppellant
would have been eligible for immediate release."
¶
7. "In reviewing [appellant's] appeal of this
summary judgment ruling, we apply the same standard as the
trial court; we will uphold the court's ruling if no
genuine issue of material fact exists and [Attorney Furlan]
is entitled to judgment as a matter of law." Ziniti
v. New Eng. Cent. R.R., 2019 VT 9, ¶ 14, ___ Vt.
___, ___ A.3d ___. This Court "must view the pleadings
and affidavits in the light most favorable to the nonmoving
party, [but] the nonmovant bears the burden of submitting
credible documentary evidence or affidavits sufficient to
rebut the evidence of the moving party." Ainsworth
v. Chandler, 2014 VT 107, ¶ 8, 197 Vt. 541, 107
A.3d 905 (quotation omitted). Furthermore, "a party may
not rest on the allegations in its pleading[s]" but must
set forth specific facts showing that there is a genuine
issue for trial. Creaser v. Bixby, 138 Vt. 582, 583,
420 A.2d 102, 103 (1980); see also V.R.C.P. 56(a).
¶
8. To succeed in a negligence claim, a plaintiff must
establish all four required elements: "a legal duty owed
by defendant to plaintiff, a breach of that duty, actual
injury to the plaintiff, and a causal link between the breach
and the injury." Montague v. Hundred Acre Homestead,
LLC, 2019 VT 16, ¶ 14, ___ Vt. ___, ___ A.3d ___
(quotation omitted). "[C]ausation requires both
'but-for' and proximate causation." Collins
v. Thomas, 2007 VT 92');">2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d
1208. "But-for" causation "requires a showing
that the harm would not have occurred 'but for' the
defendant's conduct such that the tortious conduct was a
necessary condition for the occurrence of the plaintiff's
harm." Ziniti, 2019 VT 9, ¶ 15 (quotation
omitted). Proximate cause, on the other hand, "requires
a showing that the defendant's negligence was legally
sufficient to result in liability in that the injurious
consequences flowed from the defendant's conduct and were
not interrupted by some intervening cause." Id.
(quotation omitted). And, "[a]lthough proximate cause
'ordinarily' is characterized as 'a jury
issue,' it may be decided as a matter of law where
'the proof is so clear that reasonable ...