Sunday, September 21, 2014

Tricky Tacking

Parker v. Potter, 2014 VT 109

By Andrew Delaney

Adverse possession is an odd legal beast. Basically, it’s the law’s way of saying “if you liked it, then you should have put a ring on it.” Quite often, its application turns on what the previous owners of property did or didn’t do. Sometimes, as with a very recent case, it turns on what a previous owner was or wasn’t.

Plaintiffs claimed they’d adversely possessed “several strips of land adjacent to their property: a triangular area used for parking, a small grassy knoll, and a narrow strip of land on the eastern side of the roadway leading to plaintiffs’ house.” So, how’d all this come about? I’m so glad you asked.

Appreciation for Depreciation: Part Deux

Vermont Transco LLC v. Town of Vernon, 2014 VT 93A

By Andrew Delaney

We reported on the original decision in this case three weeks ago. With this entry order and opinion, the SCOV grants "appellant’s request to amend the opinion and extend[s] the remand for further findings on the first-year depreciation issue." 

Major differences to note: (1) the opinion changes from a Justice Crawford decision to a per curiam (by the whole court) decision; (2) ¶¶ 20-22 completely change the tune from a no-abuse-of-discretion-when-the-state-appraiser-accepted-the-Town's-evidence approach to a we-need-some-findings-to-review-this-piece-and-there-aren't-any-findings-so-the-state-appraiser-had-better-make-some-on-remand approach. 

That's really all there is to it.  Other than a few words changed here and there to deal with the inclusion of the first-year-depreciation issue, the opinion, concurrence, and dissent are the same as before

Saturday, September 20, 2014

Professional Punishment Procedure

Shaddy v. State of Vermont Office of Professional Regulation, 2014 VT 111

By Andrew Delaney

This case gets into professional regulation’s procedural quirks. As one might suspect, when the SCOV has to get into such things, it’s a wee bit of a mess.

Mr. Shaddy was a nurse who was accused of diverting narcotics. He entered into a consent order suspending him from practice. Read all about that and its progeny here, here, and here. The whole thing started with Mr. Shaddy’s former employer reporting its suspicions to the Board of Nursing. The Board then referred the matter to an Office of Professional Regulation (OPR) attorney to bring summary suspension proceedings and the Board, along with the OPR attorney, investigated the complaint.

So that previously noted consent order was entered. In it, Mr. Shaddy didn’t admit liability, but he conceded that the State could prove its case by a preponderance of the evidence. At the time, Mr. Shaddy was represented by counsel. A year later, however, Mr. Shaddy filed pro se to vacate or amend the judgment on the basis that he didn’t do it and his lawyers pressured him into entering into the consent order. He included a packet of supporting materials. The OPR attorney opposed the motion.

Friday, September 19, 2014

Trial Court, Fire Up Your Calculator

Meyncke v. Meyncke, 2013 VT 82

By Elizabeth Kruska

There’s kind of a whole lot going on in this case. Husband and Wife got divorced in 2007. The Court split the property evenly, including Husband’s 401(k). The Court also ordered that Husband pay Wife $6390 per month for 13 years. That’s a million dollars. If I had a million dollars I’d buy you a fur coat. (But not a real fur coat. That’s cruel.)

The thing about 401(k)s is that you can’t just break them in half, like a cookie. There are potential tax problems, so if they’re not divided appropriately, someone could get really jammed up with a tax problem. If parties are going to split up retirement accounts in a divorce, they have to file what’s called a qualified domestic relations order (QDRO, pronounced “quadro”).

The divorce order was final on October 26, 2007, and in the order the court required Husband to file a QDRO. As of November 9, 2007 (10 days under the rule for computation of time), husband hadn’t filed that yet. Wife, on the other hand, filed a motion to alter or amend the final order. That order kicked around the court for a while, and on December 28, the judge ordered the parties to get together and make a QDRO. The motion was denied on January 25.

Sunday, September 14, 2014

Nasty Nominal

Evans v. Cote, 2014 VT 104

By Andrew Delaney

This is a case where $1 in damages carries a $22.4K attorney’s fees kicker. How the heck does that happen?

Vermont has a few statutes that apply to messing with somebody else’s trees. One of these statutes authorizes treble damages (as a musician, I think “triple” is a far-more-appropriate term, but nobody asked me); the unlawful mischief statute provides a potential route to attorney’s fees.

The parties have been neighbors since 1980. They’ve never agreed as to where the boundary line between their properties was, and they’ve been feuding about it for some time. Defendant’s deed said the middle of a discontinued road and plaintiff thought the entire road was his. Plaintiff got a default declaratory judgment against defendant in 2007, which defendant later unsuccessfully tried to have vacated.

Where a Change in use Makes no Difference

In re Burlington Airport Permit, 2014 VT 72

By Jeffrey M. Messina

This appeal comes from a grant of summary judgment in favor of the Cities of Burlington and South Burlington by the Superior Court Environmental Division. The Environmental Court upheld the South Burlington Zoning Administrative office’s issuance of 54 zoning permits to the City of Burlington and Burlington international Airport (BTV) (together, Applicants) and concluded the Applicants were not required to submit a site plan for zoning board approval.

Each permit allowed BTV to demolish, remove, and fill in the cellar holes of the vacant structure on BTV-owned property. Neighbor contends the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington (SoBu) Land Development Regulations (LDR). 

At its very core the controversy is about noise: airport-generated noise and its effects on immediate neighbors.

Saturday, September 13, 2014

Rolling Stone

Stone v. Town of Irasburg, 2014 VT 43

By: Jeffrey M. Messina

Plaintiff, the Treasurer of the town of Irasburg, sued the Town claiming the Select Board acted unlawfully in ordering her to raise her bond to $1 million then preventing her from doing so. She sought damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process.

Plaintiff was elected Treasurer of the Town of Irasburg, and almost immediately tension developed between her and the Select Board. About a month into the position, a member of the Board proposed the town's auditors should perform an audit every two weeks for the first two months of plaintiff’s term, and every month thereafter during the time she holds the position. After the first audit, the auditors told the Board they were unable to balance the books due to several mistakes in the reports submitted by plaintiff.

This is Never Funny

In re Smith, Esq., 2014 VT 77 (mem.)

By Jeffrey M. Messina

The usual wit and banter is laid aside here. Regardless of the reasoning, the outcome is nothing to laugh about.

In June 2014, the Vermont Professional Responsibility Board recommended disbarring the Respondent effective as of a previous date of suspension approximately a year prior. Respondent did not appeal and SCOV, by its own motion, declined review.

A Little Late to the Party

In re Babson, 2014 VT 105

By Andrew Delaney

The SCOV seems angry in this opinion—almost like the words are bright, flaming, candy-apple-red angry. Hell, it makes me feel like I’ve done something naughty just reading it.

Petitioner filed a second post-conviction relief (PCR) petition, in an attempt to reinstate his appeal from his first PCR on the ground that his court-appointed counsel failed to file a notice of appeal. “The trial court dismissed petitioner’s request, concluding petitioner had no constitutional right to counsel in his PCR.” In a limited manner, the State supports petitioner’s request. It’s sort of left-handed support—I’m left-handed so I can say that—but it’s support nonetheless.

Friday, September 5, 2014

Give Credit Where It’s Due

State v. Perry, 2014 VT 102

By Elizabeth Kruska

You know what’s confusing? Corrections math! It’s confusing because sometimes people have different sentences and they work together in different ways and sometimes they get credit toward their jail sentences and sometimes they don’t, and the trick is to know what goes where. It’s a talent to figure this stuff out, really.

Here’s the story with Mr. Roger Perry. Two separate burglaries happened; one in December 2010 and one in January 2011. For whatever reason, Roger didn’t get charged with those offenses until February 2012. He entered into a plea agreement in June 2013 and then got sentenced to the burglary charges in July. The sentence he got was 3-15 years all suspended but 6 months to serve. This means he’d have to go to jail for 6 months and then be on probation. If he violated his probation, he could have to serve the balance of the 3-15 years in jail.