Sunday, September 25, 2016

Reading Too Much Into Things

Town of Milton Board of Health v. Brisson, 2016 VT 56

By Amy Davis

Whenever I see a case involving a Board of Health, my mind jumps straight to those homes in Hoarders that get condemned. Have you ever watched that show? There is nothing like curling up on a Friday night with a bottle of wine and watching Hoarders. Seriously, you will feel so much better for not washing your dishes or vacuuming. Alas, this case is not so much about keeping 60 cats in your bedroom as it is about attorney’s fees.

The (lengthy) facts of this case are straightforward and really not in dispute. And since the legal analysis in this case is pretty short, the facts are really the only interesting part of this case. Defendant owned a two-story brick structure. The bottom floor housed a small bar and restaurant, the defendant lived on the second floor, and the attic was used for storage. In May 2012, the police department notified the health officer that some bricks were falling off the building and onto the sidewalk. The health officer looked at the building, said, “Yep, those bricks are falling on the sidewalk,” and issued an emergency health order condemning the building and declaring it unfit for use or occupancy. The defendant needed to hire a structural engineer to figure out what was going on, and complete all repairs within seven days.

Meanwhile, some more town and state officials came to look at the building. They installed some “Jersey barriers” to create a buffer zone, and determined that the bar/restaurant on the first floor was no longer in operation. The defendant would not allow the officials to inspect his living quarters or the attic. The state fire marshal issued a report saying the building could not be used for occupancy or public use due to the structural problems, heavy rotting in the roof, and moisture damage. The town board held its required hearing on the emergency order where the defendant acknowledged he did not do anything in response to the health officer’s order. The town board issued an order stating the brick wall collapsing endangers the passing motorists and pedestrians, which was an “immediate and substantial public health hazard.” The town board ordered the building remain uninhabited until repairs were made, that the defendant start those repairs within 24 hours, and, if he didn’t make those repairs, the building was to be demolished.

Sunday, September 18, 2016

When (Legal) Worlds Collide

Groves v. Green2016 VT 106

By Elizabeth Kruska

This is actually a very interesting legal issue. I know, I know, you’re expecting a cheeky, plucky summary of a Vermont Supreme Court case. I’m really mostly interested in the nerdy, legal part of this case. Sorry. Next time, I promise.

So, without getting into all the particular facts of this case, it essentially involves Mom and Dad who had children. The relationship appears to have been fraught with abusive behavior over the years. Dad got charged with some criminal offenses relative to Mom. Mom filed a parentage action in the family court, and asked that she be given sole parental rights and responsibilities of the kids. The Family Court granted that, said that Dad could not have contact with the kids, and also said that Dad was welcome to file a motion seeking visitation once his criminal case was done. Dad appealed all that, saying that the Family Court effectively terminated his parental rights using the wrong standard, and that by forcing him to wait until the criminal case was over before he could see his kids, that it created a prerequisite that was beyond his control.

SCOV affirms, and gives a very good explanation of all this, and why this was entirely okay.

Saturday, September 10, 2016

This is also Important

In re Manning, 2016 VT 53

By Andrew Delaney

A plea colloquy has to include a factual basis for the plea. This is important. We’ve talked about it before.

Just what is a plea colloquy? Well, if you break it down, plea means what it means and colloquy is a fancypants word for conversation. There are formal requirements to the “plea conversation.” Maybe that’s why it’s called a colloquy—because colloquy sounds really formal. Or maybe it’s one of those lawyer-job-security things. Who knows? Heretofore and hereon, let us commence with our recitation of the proceedings in the instant matter henceforth and forthwith posthaste.

Mr. Manning filed a post-conviction-relief (PCR) petition after his sentencing on a DUI4, enhanced by his DUI3. He argued that the trial court that took his DUI3 plea didn’t make sure that his plea was voluntary and supported by a factual basis. The trial court ruled in favor of the State and said the plea was good.

Monday, September 5, 2016

Developing Duties (with Dissents)

Kuligoski v. Brattleboro Retreat, 2016 VT 54

By Andrew Delaney

This case is a big development in Vermont tort and mental health law. You haven’t heard from me for a few weeks because I’ve been muddling my way through it. And I am not a smart man. If you think the summary is lengthy, you should see the opinion. Any mental-health practitioner, or lawyer involved in mental-health law or civil litigation touching on these issues, should probably sit down with a cup of coffee (or whatever drink one prefers; I’m not trying to be a coffee supremacist here even though coffee is the best) and work one’s way through it.

Michael Kuligoski was attacked and seriously injured by a former Brattleboro Retreat patient, E.R., who was being treated by Northeast Kingdom Human Services (NKHS). The Kuligoskis sued the Retreat and NKHS for “failure to warn of E.R.’s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking.” The defendants moved to dismiss that complaint and the superior court granted the motion, concluding that the Kuligoskis had failed to state a claim.

In a mixed-bag decision, the SCOV majority reverses on a couple claims and affirms on others. The dissents are fiery. It gets a little heated. (Sorry.)

Saturday, September 3, 2016

Property Division

Casavant v. Allen, 2016 VT 89

By Elizabeth Kruska

When we’re talking about divorces, Vermont is an equitable distribution state. If people split up and can’t figure out how to divide their property, the court is not necessarily going to cut the property in half and give each side 50%. Sometimes that happens—or comes close. The court is charged with the duty of considering various issues in a marriage, and splitting up property so it’s fair to each side.

For example, let’s suppose people get married and divorce after one year. Let’s also suppose Wife is the heiress to the O Henry! candy bar fortune and Husband is the Got No Green Lantern. Wife is obviously better situated, financially-speaking than husband. Husband can ask for half of the O Henry! Candy bar fortune, but he probably isn’t going to get it, because the court is going to say that isn’t equitable. They’d only been married a year, and the money didn’t arise as a result of something within the marriage; giving him half would not make sense. Even though Wife came in to the marriage with lots of money, and even though the marital estate includes all property, regardless of its origin, the court is going to look at a non-exhaustive list of statutory factors when it comes time to divvy up the property.

In this case, Husband and Wife had twin sons and were married for fourteen years before separating. They owned a house, some cars, some bank accounts, and some other miscellaneous personal property that people normally have. They also had a large cash settlement that Husband received as a result of an employment discrimination lawsuit that happened during the marriage. Husband also expected a settlement from an unrelated personal injury lawsuit. Unfortunately, most of the money from the discrimination suit was spent, possibly indiscriminately (depending who you ask), including the portion that the family had set aside to cover the related tax burden. As a result, they had a significant tax debt going in to the divorce.

Sunday, August 28, 2016

Reefer Madness

C&S Wholesale Grocers v. Vermont Department of Taxes, 2016 VT 77

By Elizabeth Kruska

Some of you may have seen this movie.

You know what a reefer is? No, silly, it’s a refrigerated truck! I mean, yeah, it’s also weed, but in the context of this particular opinion, it’s a truck and the fuel that runs the refrigerated part of the truck. Actually, this opinion is more about refrigerated tubs, but I can’t think of anything funny about refrigerated tubs.

C&S is a big wholesale grocer company in Vermont, and with its business headquarters in Keene, New Hampshire. They buy grocery products from producers and re-distribute them throughout New England and New York. I should mention that at one point in the last decade my husband, who is also an attorney, provided some legal services to C&S. I am not sure what he did, and it’s been at least five years since he had any cases with them. I vaguely remember him having to prepare for a trial involving questions about the correct way to weigh cheese. He kept calling it “The Cheese Trial.” I believe The Cheese Trial settled amicably.

Cheese, like many other grocery products, has to be kept cool in order to be safe for distribution, re-sale, and ultimately for consumption by human beings. The trick is that the producers and distributors have to be able to maintain the right conditions from point A to B to C to your fork. That’s more cumbersome and less romantic than “Farm to Table” but I think you know what I mean.

Vesting

Vesting. Vest. Get it? 
Coons v. Coons, 2016 VT 88

By Elizabeth Kruska

This is a short opinion, so hopefully this will be a short summary.

Husband and Wife were married but decided to divorce. They had a final divorce hearing that took place over the course of two days. During the second day of the hearing, an issue came up regarding Husband’s military pension. The judge called a recess and called the parties’ attorneys into chambers, where they discussed the status of the case. In the biz we call this a “weather report.” They can be helpful in moving cases along.

During the chambers conference, the judge said he wasn’t going to make an order distributing the military pension, because Husband’s interest in it had not yet vested. The lawyers said, “thanks for the head’s up,” went back out to their clients, and hammered out a final settlement, which included Husband paying Wife $15,000.

Wetland Woes

Agency of Natural Resources v. McGee, 2016 VT 90

By Elizabeth Kruska

I like horses. Here’s an actual conversation I have had with various horses:
Me: Walk on, we’re going to the paddock.
Horse: But there’s grass.
Me: Walk on, you can eat the grass in your paddock.
Horse: But there’s grass right here.
Me: What part of “walk on” were you not totally understanding?
Horse: You know I weigh 1200 pounds, right? There’s grass. We’re stopping to graze.
Anyone who has led a horse past anything green has had this same conversation. Horses are grazing machines. And who can blame them? If your favorite food grew directly out of the ground and all you had to do was bend your head down and munch on it, you’d be all over it, too. (Note: if your favorite food is lettuce, and you can and have done this in a lettuce patch, please tell us all about it in the comments.)

This is going somewhere, I promise.

Redemption: Tax-Sale Style

Burgess v. Lamoille Housing Partnership, 2016 VT 31

By Elizabeth Kruska

Immediate, up-front disclaimer: I do not do real estate law. To the extent this case has to do with real estate, deeds, and other things to do with land, I’m a touch out of my element. I’m good with the legal part. I might as well be trying to explain the infield fly rule; I get baseball, but the infield fly rule does not adhere to my brain.

Given that disclaimer, here are the facts, basically. Mr. Burgess’s parents bought some property via the Lamoille Housing Partnership (LHP). The land had a house, which they owned, but ownership of the house was severed from the land itself. The Burgesses got a leasehold interest in the land for development for 99 years and had terms and conditions to follow, including that they had to pay the taxes on the whole property.

They later disputed paying taxes and ended up delinquent. They went to court, and the court determined that they did have to pay the taxes and that they did not own the underlying land. There was a tax sale, and the Burgesses’ son, Matthew, went to bid on the land. He was outbid at the sale. The sale was subject to redemption, meaning if the Burgesses paid off their tax debt within a certain period of time, they would not lose the property.

Jurisdiction Justification

Ward v. LaRue, 2016 VT 81

By Elizabeth Kruska

I like the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). I like it because it’s a set of rules that deals with things that happen in real life. Let’s suppose Mother and Father are married and have a child. Then they divorce and Mother gets primary physical custody of Child, but Father gets visitation. These are things that happen to real people. This is normal and part of what goes on in the world. Another thing that happens in real life is that people move. Sometimes people move to different states. This is also normal.

However, there can be complications. With respect to child custody, if people can’t agree on how to solve a problem that arises because one parent or the other has moved to another state, there are rules. Those rules are the UCCJEA.

Here’s what happened in this case. Mother and Father lived in Vermont and had a child who also lived in Vermont. A divorce was filed and granted, and Mother was awarded primary physical rights and responsibilities of Child, while Father was awarded visitation. It’s not stated, but apparently right out of the gate Mother wasn’t allowing Father to have his time with Child, because Father had to file a motion to enforce parent child contact fairly soon after the divorce. Only ten months after the divorce was final, the trial court entered an order that admonished Mother that if she didn’t follow the parent child contact order that the court might change custody. The court also said that Father had full access to medical, dental, law enforcement, and school records of Child.