Saturday, July 26, 2014

The “You Snooze, You Lose” Doctrine

Joseph v. Joseph, 2014 VT 66

Mr. and Mrs. Joseph (“husband” and “wife,” because that’s shorter) were married for 23 years, until in December 2011, wife filed for divorce. Ten months later, in October 2012, the parties entered into a temporary stipulation. In part, it called for husband to pay various debts, like the mortgage, taxes, insurance, and utility bills. The parties apparently couldn’t agree to any more than that, and had a 2-day contested hearing in March of 2013.

It would appear that husband didn’t pay for certain things between October and March, as required in the October stipulation. Wife didn’t bring this up during the final hearing, even though it seems that at the time, she knew there were things that weren’t paid. The court divided the property and issued a final divorce decree in April 2013. The parties went on their merry ways and nobody appealed.

Jumping the Gun

Kelley v. Department of Labor, 2014 VT 74

By Andrew Delaney

I couldn’t say it better than the SCOV. “This case turns upon a common question in employment disputes: did the employee jump, or was she pushed?”

Claimant was employed at Maple Leaf Farm Association, Inc., as a part-time treatment counselor for seven years. Due to a conflict with her supervisor, she submitted a letter of resignation. She said her last day would be a little over two weeks later. Employer allowed her to continue working, but that only lasted four days; claimant got the proverbial boot and was escorted off the premises.

Claimant applied for unemployment benefits. The initial adjuster found that she had left employment voluntarily without good cause and denied the claim. So claimant appealed to a referee, who found that claimant was entitled to benefits, and that there was no indication of misconduct in the record.

DataMaster's "Fatal" Error revived with CTRL-ALT-Delete

State v. Burnett, 2013 VT 113

By Ember Tilton

After being arrested for DUI, Jason Burnett attempted to blow into the DataMaster (Vermont's evidentiary station-house breath-alcohol-testing machine). He might have thought he hit the DUI jackpot when the machine returned a "fatal error" message. Machine's broken! Game over. But, like with Microsoft windows, one may only need to turn it off and turn it back on again. 

Well, that's exactly what the police officer did. And, the second time it worked "like a charm" returning a .229 reading (that's a pretty high test result in case you were wondering). Under Vermont law, a person is entitled to a second try. So, when he attempted again and the machine again returned a error message, the process was repeated. Again, the machine worked after the restart and Burnett blew a .260 (assuming that the machine is accurate, that's over halfway to dead, medically speaking). He was subsequently charged with DUI and issued a civil suspension complaint.

Extinction of distinction . . .

Demag v. Better Power Equipment, Inc., 2014 VT 78

By Jeffrey Messina

In this case, the SCOV takes the bold step of abolishing Vermont's common law negligence distinction between licensees and invitees.  Perhaps the SCOV wanted to make this year's administration of the bar exam just a little more interesting.

Plaintiff appeals a summary judgment decision against him in his personal injury case. The superior court concluded that plaintiff was a licensee of the defendant rather than an invitee. As such, plaintiff was entitled to a lesser standard of care, and plaintiff lost.  Or did he?  

Let's take a look at the facts.  

Thursday, July 24, 2014


In re Allen, 2014 VT 53

By Jeffrey Messina

WARNING: This SCOV Law summary contains graphic material that may not be suitable for all audiences. Parental guidance is suggested . . . .

This case involves allegations of a pretty horrible act on a child, and how much discretion a trial court has to consider facts not in evidence when determine sentencing.

Petitioner appeals a summary judgment ruling in his quest for post-conviction relief (“PCR”) on the basis that the court applied improper legal standards in reaching its decision on his claim of ineffective assistance of counsel.

Wednesday, July 23, 2014

Reviewing the unreviewable . . .

In re Roy Girouard, 2014 VT 75

By Jeffrey M. Messina

Petitioner appeals the superior court's denial of motion to reopen his post-conviction-relief (“PCR”) petition and order the Department of Corrections (“DOC”) to release him on furlough.

In the mid-seventies, petitioner was convicted of first-degree murder and sentenced without a minimum term. At the time, eligibility for furlough was not conditional on the completion of a minimum prison term. However, in 2001 the Legislature amended the governing statute to condition eligibility for conditional re-entry furlough on the completion of a minimum term.

Petitioner filed an action against the DOC in 2007 alleging its refusal to consider him furlough eligible because he lacked a minimum sentence violated the Ex Post Facto Clause of the US Constitution. The superior court dismissed the claim determining the amended statute did not violate the clause because it did not increase the penalty for the crime. 

Tuesday, July 22, 2014

The Leave-Behinds

JW, LLC v. Ayer, 2014 VT 71

By Elizabeth Kruska

With the parties named Bryan and Debbie, it took everything I had not to write this summary to the tune of “Scenes From An Italian Restaurant” since the names “Bryan and Debbie” make me think of “Brenda and Eddie.” If anyone wants to write a verse or two, leave it in the comments and maybe we can make a song. It might be the first-ever song parody written about landlord-tenant law.

Bryan and Debbie rented a home from JW, starting in 2005. It was relatively new and in great condition when they moved in. They lived there until 2012 with their kids, dogs, chickens, and all their personal property. They didn’t pay rent in March and April 2012. They did pay their May 2012 rent, plus $300 in arrears on their back rent.

JW, the landlord, filed for eviction in July. The court issued a rent escrow order. That’s when, during an eviction, tenants can continue to pay their rent, but they pay it into the court while the case is pending instead of paying the landlord. Bryan and Debbie paid part of their August rent, but not all of it. The opinion isn’t totally clear, but it appears they did not pay June or July’s rent.

Who’s Your (Well, Anybody’s) Daddy?

Moreau v. Sylvester, 2014 VT 31

By Elizabeth Kruska

At first blush, the facts of this case seem simple.

Christopher Moreau and Noel Sylvester dated over several years. Noel has 2 kids. Christopher wasn’t their dad, but for 8-10 years, was a pretty significant parent-figure in their lives. I think we can assume that he and the kids formed a relationship based on the time they spent together.

Unfortunately, as things sometimes do, the relationship fell apart. Noel moved on and started dating someone new. Christopher sent her text messages suggesting he would find her and the kids. He tracked down Noel’s new boyfriend at work, and then went to Noel’s house and knocked on her door in the middle of the night. The next night he did the same thing with a friend, and they both banged on Noel’s door until the police came.

Based on this behavior, Noel decided to get a relief from abuse (RFA) order, which was granted relative to both she and the kids. This happened in Caledonia County. Christopher appeals this.

Sunday, July 20, 2014

Combination Conundrum

In re B.A., 2014 VT 76

By Andrew Delaney

B.A. was referred to a special school when she was 13 or so. There were concerns from the get-go about hygiene and self-injury. There was also an incident in which B.A.’s brother was allegedly sexually assaulted by B.A.’s friend, while B.A. was present and mom was in another room at their house. Then B.A. showed up to school drunk. The Department of Children and Families (DCF) got more involved, and a child-in-need-of-care-or-supervision (CHINS) proceeding as well as a juvenile delinquency proceeding were started.

The trial court essentially combined the two proceedings, and mom waived her right to counsel. B.A. admitted the delinquency, but mom opposed the disposition on the delinquency (which recommended continued DCF custody), and the merits on the CHINS allegation. There was a two-day hearing, and evidence was introduced about the living conditions at mom’s house, B.A.’s behavioral issues, and the alleged sexual assault. 

Two for the Price of One?

Hoiska v. Town of East Montpelier, 2014 VT 80

By Andrew Delaney

In this case, “two for one” is not so much a deal as it’s a potential penalty. The SCOV holds that an unrecorded survey with a supposed dividing line through it doesn’t legally break your property up into two lots. Dates become important in this case though.

Taxpayer has owned a 16.2-acre lot since 1977. In 1977-78, taxpayer had a survey done, which may or may not have included a line subdividing the parcel into two lots. From 1974-82, the town only required subdivision approval for a three-or-more-lot division. After 1982, approval was required for two-or-more—in other words, any—division. Now, in 1986, taxpayer recorded the 1977-78 survey. She never applied for nor received subdivision approval. Almost 15 years passed.