Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-384

                                        AUGUST TERM, 2016

 Jamie Wool                                            }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Douglas Cavett                                        }    DOCKET NO. 95-1-12 Cncv

                                                            Trial Judge: Helen M. Toor

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals a jury verdict in favor of plaintiff. On appeal, defendant raises various
challenges to the discovery process and the trial. We affirm.

       In April 2010, defendant pleaded no contest to a charge of aggravated sexual assault for
sexually abusing plaintiff. Docket No. 1967-5-09 Cncr. Plaintiff filed suit in January 2012 against
several different defendants, claiming that defendant Douglas Cavett had used his position of
power and authority as a teacher’s aide to groom and then sexually assault plaintiff beginning
when plaintiff was ten years old. Other named defendants included the school plaintiff attended
and where defendant was employed and defendant’s parents. Those defendants were dismissed
from the case prior to trial. Following a trial, a jury found defendant liable and awarded $1 million
in damages. Defendant appeals.

       On appeal, defendant first asserts that the trial was inherently unfair because he did not
have a lawyer and plaintiff was represented. Except for proceedings that might result in
incarceration, there is no constitutional right to counsel in civil cases. Russell v. Armitage, 166
Vt. 392, 397 (1997). Those proceedings in which counsel is provided are controlled by statute. In
re Chapman, 155 Vt. 163, 166 (1990). Here, defendant has not demonstrated that he falls within
the ambit of any statutory grant. Therefore, there was no error in failing to appoint him counsel.

        Defendant also argues that the court erred in denying his request for plaintiff’s records from
the Department of Corrections (DOC) because he was self-represented. The issue of plaintiff’s
records arose pretrial when plaintiff’s former school, which was also originally named as a
defendant, requested them. The court concluded that the records were relevant to evaluating the
psychological damage plaintiff alleged was a result of defendant’s sexual abuse. The court ordered
that the records be released to the attorneys for the parties under a protective order. The court did
not release the records to defendant Douglas Cavett personally because he had not requested them
and the court did not have confidence in defendant’s compliance with the terms of the protective
order, given defendant’s sexual assault conviction.
        Our ability to review this and other claims claim is severely limited by the state of the
record on appeal in this case. When he filed his notice of appeal, defendant also requested that the
court provide transcripts free of charge. Defendant’s docketing statement identified the transcript
of his four day jury trial as necessary for the appeal. On November 30, 2015, this Court issued an
order noting that pro bono transcription is permitted in “exceptional cases” pursuant to V.R.A.P.
10(b)(9), and inviting defendant to submit a written statement detailing his claims of error on
appeal so that the court could reconsider his motion. After subsequent filings by defendant
detailing the nature of his claims on appeal and reiterating that the full transcript of the four day
jury trial would be required for review, this Court, through a single Justice, issued an order
indicating that transcribing a four day jury trial would consume two-thirds of the available budget
for pro bono transcripts. The order invited defendant to narrow his request, by witness or day, to
the portions of transcript necessary for his appeal at which point the court would reconsider his
motion. The order indicated that if defendant did not file such a designation, the record would be
deemed complete. Defendant did not subsequently narrow his request, and the court ultimately
denied it and deemed the record complete.

       The Vermont Rules of Civil Procedure state:

               No error in either the admission or the exclusion of evidence and no
               error or defect in any ruling or order or in anything done or omitted
               by the court or by any of the parties is ground for granting a new
               trial or for setting aside a verdict or for vacating, modifying or
               otherwise disturbing a judgment or order, unless refusal to take such
               action appears to the court inconsistent with substantial justice. The
               court at every stage of the proceeding must disregard any error or
               defect in the proceeding which does not affect the substantial rights
               of the parties.

V.R.C.P. 61. That means that on appeal, even if we conclude that a trial court’s ruling was
erroneous, that is only a basis for reversing the trial court’s decision if we conclude that the error
affected the substantial rights of the parties. In this case, defendant appears to argue that the
discovery that was allowed to other defendants who were represented by lawyers but denied to
him would have helped him defend against the plaintiff’s claim for damages by potentially
revealing other life events besides defendant’s actions that may account for plaintiff’s difficulties.
That view may be correct, but without the ability to consider the evidence of damages plaintiff put
forward at trial, we have no way of evaluating whether denying defendant the disputed discovery,
even if that was an error, substantially affected his rights.

         Similarly, defendant fails to demonstrate any prejudice from his various other claims
concerning discovery. There is no merit to defendant’s claim that the court erred in precluding
him from attending oral depositions due to his incarceration. First, the court did not actually
preclude defendant from attending depositions; his restrictions in that regard arose from his
conviction and sentence in the criminal matter. The court did not issue an order barring defendant
from attending depositions; it simply declined to order the Department of Corrections—not a party
to this civil case—to suspend its rules to facilitate defendant’s attendance. Plus,although defendant
generally claims that this made the proceedings unfair, he fails to identify what information he was
unable to discover or how it this prejudiced him. See Furgueson v. Dunstan, 143 Vt. 316, 319
(1983). Defendant’s assertions that he could not conduct proper discovery because the prison lost
his legal materials on various occasions also fails to show prejudice. Defendant concedes that the
court extended the discovery period at one point to provide him with additional time. He does not
delineate what further action would have been appropriate or how this negatively affected the trial.
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        Defendant makes several arguments concerning the court’s evidentiary rulings during trial,
including that he should have been allowed to testify as an expert and that he was denied an
opportunity to introduce several different pieces of evidence.* Because defendant has failed to
order a transcript of the proceedings, this Court lacks a sufficient record to determine whether
defendant’s arguments are properly preserved for appeal and to review the substance of the court’s
rulings. See V.R.A.P. 10(b)(1) (“By failing to order a transcript, the appellant waives the right to
raise any issue for which a transcript is necessary for informed appellate review.”); State v.
Gadreault, 171 Vt. 534, 538 (2000) (mem.) (explaining that without transcript court could not
review errors alleged to have occurred during trial).

        Defendant next alleges that the proceedings were biased because he appeared before the
jury in handcuffs and shackles during the jury draw. This Court has recognized that in a criminal
trial “exposing the jury to a defendant in shackles, or otherwise emphasizing a defendant’s
incarcerated status, may in some cases undermine the presumption of innocence that is essential
for a fair trial.” State v. Bruno, 2012 VT 79, ¶ 37, 192 Vt. 515 (citation omitted). We agree with
many other courts that due process may also be deprived in a civil trial where a party appears in
physical restraints and that the trial court has discretion to order restraints when they are “necessary
to maintain safety or security.” Sides v. Cherry, 609 F.3d 576, 581 (3d Cir. 2010) (citing cases)
(quotation omitted). On this point, defendant asserts: “I was forced to sit in front of the jury pool,
handcuffed and shackled for four hours, but this was not determined to be necessary at any other
times.” He asserts that he attempted to address the issue with the judge, but the judge did not
respond. Again, this Court is unable to review defendant’s claim without a transcript of the
proceeding. There is no record from which this Court can determine whether defendant objected
to the restraints or on which this Court can review whether the trial court abused its discretion in
allowing the restraints. For example, there is no record to demonstrate the basis for the court’s
decision or its reasoning as to the necessity of the restraints.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  Beth Robinson, Associate Justice

                                                  _______________________________________
                                                  Harold E. Eaton, Jr., Associate Justice




       *
           Defendant also claims that plaintiff failed to provide him with a list of witnesses prior to
trial as required by Federal Rule of Civil Procedure 26. The Vermont Rules of Civil Procedure
applied to this proceeding and those rules, unlike the federal equivalent, do not mandate disclosure
of a witness list within a certain period prior to trial. The record demonstrates that a witness list
was indeed disclosed by plaintiff prior to trial. Therefore, defendant has failed to show that
plaintiff did not comply with the civil rules.

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