Waiver of Factual Challenges for Missing Transcripts in Vermont Anti‑Stalking Appeals (and Appellate Counsel’s Duty of Accurate Authority)

Case: Jessica Cover v. Susan Tyrell / Jessica Cover v. Robert Nolan / Christopher Cover v. Susan Tyrell / Christopher Cover v. Robert Nolan
Court: Supreme Court of Vermont (Entry Order, three-justice panel; nonprecedential per the Order’s notice)
Date: July 10, 2026
Disposition: Final anti-stalking orders affirmed

I. Introduction

These four consolidated matters arose from a deteriorating relationship between owners of abutting vacation cottages in a remote area of Brownington, Vermont. Plaintiffs Christopher and Jessica Cover sought civil anti-stalking orders against neighboring cottage owners Robert Nolan and Susan Tyrell. After a two-day evidentiary hearing, the Orleans Unit, Civil Division (Judge Lisa Warren) issued four final anti-stalking orders (one for each plaintiff against each defendant).

The central issues on appeal were: (1) whether the evidence and findings supported that defendants “stalked” plaintiffs under Vermont’s anti-stalking statute, including by surveillance, threats, and property interference; (2) whether conduct could be attributed to both defendants; (3) whether findings were sufficiently specific; and (4) whether some communications were constitutionally protected speech.

II. Summary of the Opinion

The Vermont Supreme Court affirmed. Procedurally, it held that defendants waived challenges to the trial court’s factual findings because they failed to order transcripts of both hearing days, as required for meaningful appellate review under V.R.A.P. 10(b).

Substantively, the Court concluded that the trial court correctly applied the anti-stalking statute. The findings supported that defendants engaged in a statutory “course of conduct” directed at plaintiffs—via extensive surveillance/monitoring (cameras, motion alarms, seismic sensors, drone surveillance, and even a yard robot used to “see” around plaintiffs’ privacy fence), threats and “true threats” (sniper-related texts, shooting “line of fire” warnings, and an implied risk that plaintiffs could be shot by an armed “marksman/sniper” friend), and interference with property (altering/removing safety signage, entering property, removing stakes, and moving objects).

The Court also rejected defendants’ claims that the trial court failed to apply an objective standard, noting the trial court expressly found the conduct would cause a reasonable person to fear for safety and suffer substantial emotional distress. Finally, it cautioned defense counsel that misrepresenting authority may result in sanctions.

III. Analysis

A. Precedents Cited

1. Morton v. Young, 2023 VT 29

• Use in this case: Cited for the standard of review on statutory interpretation: whether the anti-stalking statute was correctly interpreted is reviewed “anew” (de novo).
• Influence: Frames the Court’s division of labor: de novo review for legal interpretation, but deference to trial-level factfinding and discretionary determinations in granting orders.

2. Scheffler v. Harrington, 2020 VT 93

• Use in this case: Cited for the appellate standard of review: the grant/denial of a final anti-stalking order is reviewed “only for an abuse of discretion,” recognizing trial courts’ superior ability to evaluate credibility and evidence.
• Influence: Reinforces that appellate re-weighing of credibility is disfavored—especially significant given defendants’ transcript failure.

3. Haupt v. Langlois, 2024 VT 3

• Use in this case: Cited twice: (a) for the principle that, if the law is correctly applied, conclusions supported by findings will be upheld; and (b) to analogize anti-stalking and RFA statutes as remedial, forward-looking protections focused on the plaintiff’s need for safety.
• Influence: The Court uses Haupt to rebut defendants’ attempt to reframe lawful acts as categorically non-stalking. The Court emphasizes that Haupt did not establish the rule defendants claimed and did not address the “boundary stakes” issue as defendants represented.
• Additional significance: The Court highlighted counsel’s inaccurate description and purported quotation of Haupt, coupling it with a warning about sanctions.

4. Swett v. Gates, 2023 VT 26

• Use in this case: Cited to underscore how difficult it is to overturn factual findings supporting an anti-stalking order: findings are disturbed only if the appellant shows “no credible evidence” supports them.
• Influence: Supports the waiver holding: without the full transcript, the Court cannot assess whether evidence supports challenged findings.

5. Smith v. Wright, 2013 VT 68

• Use in this case: Cited for the proposition that “extensive findings are not generally required” in protective-order contexts because the proceedings are remedial (aimed at victim protection, not punishment).
• Influence: Helps the Court reject the “insufficiently specific findings” argument—especially where, as here, the trial court nevertheless made extensive findings.

6. Vasseur v. State, 2021 VT 53

• Use in this case: Cited for the appellate briefing rule that issues not raised in the opening brief cannot be raised for the first time in a reply brief.
• Influence: Allows the Court to avoid reaching a late-raised statutory-interpretation argument about “directly or indirectly.”

7. Hinkson v. Stevens, 2020 VT 69

• Use in this case: Central to two themes:
  • Plain-language interpretation: Where the civil anti-stalking statute is unambiguous, courts give effect to its plain meaning.
  • Substantive definitions: “Monitoring” entails tracking/collecting information about a person or their activities; and the First Amendment does not protect “true threats.”
• Influence: Anchors the Court’s conclusion that defendants’ security technologies—though facially lawful—can constitute prohibited “monitor[ing]” when used to track plaintiffs; and that threatening communications fall outside constitutional protection.

B. Legal Reasoning

1. Statutory framework applied

The Court’s analysis is tightly structured around the anti-stalking statute:

• Grant standard: The trial court “must grant” a final anti-stalking order upon finding by a preponderance that defendant “has stalked” plaintiff. 12 V.S.A. § 5133(d)
• Definition of “stalk”: Purposeful “course of conduct” directed at a specific person, which the actor knows/should know would cause a reasonable person to fear for safety or suffer substantial emotional distress. 12 V.S.A. § 5131(6)
• “Course of conduct”: Two or more acts—following, monitoring, surveilling, threatening/making threats, or interfering with property—by any means, directly or indirectly. 12 V.S.A. § 5131(1)(A)(i), § 5131(1)(B)
• Threats need not be overt: 12 V.S.A. § 5131(1)(C)
• Constitutional carveout: Constitutionally protected activity excluded from “course of conduct.” 12 V.S.A. § 5131(1)(B)

2. Appellate procedure drives outcome on factual disputes (waiver)

The Court held defendants waived their factual challenges because they failed to order transcripts of both hearing days. Under V.R.A.P. 10(b), an appellant must order transcripts “necessary for appeal”; failure waives issues requiring a transcript for informed review. Because the trial court’s findings were based on both hearing days, the missing September transcript was “indispensable.” This procedural ruling effectively confined the appeal to legal-application arguments rather than a granular re-litigation of facts.

3. Attribution of conduct to both defendants

Defendants argued the trial court improperly held both responsible for the same acts. The Supreme Court rejected this, pointing to findings that Ms. Tyrell was “a willing participant” in surveillance and that Mr. Nolan expressly claimed he spoke for her in a confrontational message (“she will agree to the tone / intentions in this text as well”). The trial court’s attribution was consistent with the statute’s breadth—covering acts conducted “directly or indirectly” and by any method or device. The Court also refused to address a narrower construction advanced only in reply (briefing waiver under Vasseur v. State, 2021 VT 53), while noting that the argument conflicted with the statute’s plain language.

4. Specificity of findings and the objective standard

Defendants contended findings were not specific and that the trial court judged only plaintiffs’ subjective reactions. The Court answered both points:

• Specificity: Although protective-order proceedings do not always require “extensive findings” (Smith v. Wright, 2013 VT 68), the trial court here issued a nine-page order with detailed findings identifying property interference, surveillance, and threats.
• Objective test: The trial court expressly found the conduct “would cause a reasonable person in the Covers’ position” to fear for safety and experience substantial emotional distress—tracking the statutory standard.

5. “Lawful security” can still be stalking when deployed to monitor and intimidate

A key practical holding is the Court’s refusal to treat security measures as insulated from the stalking statute. The trial court found defendants used the system not merely for home-security but to “continuously monitor” plaintiffs, capturing their movements, triggering audible “You are being recorded” announcements, deploying sensors on a gate on plaintiffs’ property, and maneuvering a robot to “see” around plaintiffs’ privacy fence. Citing Hinkson v. Stevens, 2020 VT 69, the Court accepted that “monitoring” includes tracking/collecting information about a person’s activities—making high-tech surveillance tools legally relevant when used in a targeted campaign.

6. First Amendment arguments and “true threats”

Defendants argued their communications were constitutionally protected. The Court acknowledged the statute’s constitutional carveout, but emphasized that “true threats” are not protected speech. Quoting Hinkson v. Stevens, 2020 VT 69, it reiterated that true threats include serious expressions of intent to commit unlawful violence against a particular individual or group; and the statute clarifies threats need not be express or overt. On the trial court’s credited findings, the sniper-related texts, warnings about plaintiffs being in a “line of fire,” and the implied risk from an armed “marksman/sniper” visitor could be treated as prohibited threatening conduct within the statutory framework.

7. Integrity of appellate advocacy (sanctions warning)

The Entry Order’s footnote is unusually pointed: the Court described a removed citation that “did not correspond to any identifiable case,” warned that citing “fake authority” undermines credibility, and reminded counsel of certification duties under V.R.C.P. 11(b)(2) as incorporated by V.R.A.P. 25(d)(2). It then warned that “further conduct of this nature may result in sanctions proceedings” under V.R.A.P. 25(d)(3).

C. Impact

1. Appellate practice in protective-order cases

• Transcript completeness is decisive: The decision underscores that factual challenges in anti-stalking appeals are effectively dead on arrival if appellants do not order all transcripts needed to evaluate the findings.
• Framing matters: Because protective orders are reviewed for abuse of discretion and supported findings are rarely disturbed, appellants must focus on preserved legal errors and a complete record.

2. Stalking law and modern surveillance technologies

• Technology-neutral statutory reach: The Court’s acceptance of cameras, sensors, drones, and a yard robot as tools of “monitor[ing]” and “surveil[lance]” reflects the statute’s express coverage of acts by “any action, method, device, or means.”
• Lawful devices, unlawful purpose: Even if a device is lawful on one’s own property, using it as part of a targeted, intimidating campaign can satisfy the “course of conduct” and “purposefully” elements.

3. Neighbor disputes and “weaponized” property rights

• Boundary-adjacent intimidation: The findings show how property conflicts can evolve into safety threats—e.g., “line of fire” warnings, removing “safety zone” signs, and implying risk of being shot while on one’s own land. The order signals that courts will look past “it’s my property” defenses when conduct is directed at specific neighbors and foreseeably causes fear or substantial distress.

4. Professional responsibility consequences

• Heightened scrutiny of citations: The explicit warning about “fake authority” and misquotations foreshadows a low tolerance for inaccurate representations of precedent, particularly where used to challenge protective orders.

IV. Complex Concepts Simplified

• “Preponderance of the evidence”: More likely than not. The plaintiff does not need proof beyond a reasonable doubt.
• “Course of conduct”: At least two acts (even close in time) that include monitoring/surveillance, threats, or property interference. The statute is broad and explicitly includes actions done through devices (e.g., sensors, cameras, drones).
• Objective vs. subjective fear: The question is not only whether the plaintiffs felt afraid, but whether a reasonable person in their position would fear for safety or suffer substantial emotional distress.
• “Abuse of discretion” review: Appellate courts generally defer to trial judges on protective orders because trial judges see and hear witnesses directly. Appeals succeed mainly where the wrong legal standard was used or findings lack evidentiary support.
• “True threats”: Speech that seriously communicates an intent of unlawful violence is not protected by the First Amendment, even if phrased indirectly. Under the statute, threats need not be overt.
• Transcript waiver (V.R.A.P. 10(b)): If you claim the trial court got the facts wrong, you must provide the appellate court the hearing transcripts needed to check. If you do not, you usually lose that argument automatically.

V. Conclusion

This Entry Order affirms four anti-stalking orders arising from a sustained campaign of surveillance, intimidation, and property interference between neighboring property owners. The Court’s reasoning is notable in two ways: it enforces strict record-making requirements on appeal (waiving factual challenges where appellants fail to order complete transcripts), and it applies the anti-stalking statute to modern monitoring technologies and implied threats—recognizing that ostensibly “lawful” security measures can become stalking when purposefully directed at specific people to frighten or distress them.

Equally significant is the Court’s admonition to counsel: inaccurate citations, misstatements of holdings, or fabricated authority can trigger sanctions. In protective-order litigation—where the law is remedial and the trial court’s credibility findings receive strong deference—procedural discipline and candor about precedent are not ancillary; they are outcome-determinative.