Friday, October 30, 2015

Round Two: Vote for SCOV Law!

Thanks to you fine folks, we made it to round two of the best legal blogs contest we were nominated for back in July.

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Thursday, October 8, 2015

Among Other Things, A Signal

In re: M.O, Juvenile
2015 VT 120

By Elizabeth Kruska

M.O. was Mom’s first child, born when Mom was twenty-one. The opinion makes clear that Mom has some cognitive delays, and maybe also has a learning disorder. Before M.O. was born, she got services from a visiting nurse to help prepare for the baby. The nurse found that Mom was engaged in the preparation (Dad less so). The nurse, in hindsight, thought that maybe she should have called DCF before the baby was born so they could help with safety planning.

In any case, M.O. was born, and while Mom and the baby were in the hospital, the hospital social workers and nurses observed that Mom was having some difficulty with pretty basic things. Feeding, waking up when the baby cried, that sort of thing. The hospital workers, as mandated reporters, called DCF because they were concerned that there was a risk of harm to M.O. if there wasn’t some intervention. DCF stepped in and took M.O. into custody.

Wednesday, October 7, 2015

Grandma Got Run Over By Judicial Notice

In re: A.M., Juvenile
2015 VT 109
By Amy Davis

The fall of 2011 bore a child by the initials A.M. Unfortunately, A.M.’s parents struggled with going substance abuse, and the summer before A.M.’s second birthday, DCF filed a CHINS petition after an indication that A.M. was in a hotel room with Mom, Dad, and some heroin. A.M. was placed with his maternal grandmother pursuant to a temporary-care order.

In November 2013, A.M. was adjudicated CHINS based on his parents’ stipulation of their history of drug use.  But the big question was if Grandma was suitable to take care of A.M. given that she was not licensed as a foster parent.  Mom moved to transfer temporary custody to Grandma, and the court indicated it would maintain status quo until an evidentiary hearing.

Tuesday, October 6, 2015

Extraneous Email Effect?

Labate v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center, 2015 VT 128

By Andrew Delaney

Juries are supposed to be free of outside influence. This appeal boils down to whether an email sent to hospital employees over the course of a trial influenced the jury. The trial court concluded that it did not and the SCOV concurs for the most part.

The Labates filed suit against Rutland Regional Medical Center (RRMC) (and related entities) and an individual doctor alleging medical malpractice associated with the birth of their daughter. Eventually, the case went to trial.

During voir dire—which translated from French means “to see to speak,” is pronounced differently all over the U.S., and just means “jury selection” but sounds a whole lot fancier—one of the prospective jurors disclosed that he worked for RRMC in security. He wasn’t kicked out of the jury pool by either side preemptively or for cause.

Wednesday, September 30, 2015

The Principal Principle

Every person who stands accused of a crime is entitled to a vigorous defense, no matter how horrible are the acts that person may have committed.  Standing firmly upon that heroic principle is the case of the notably unheroic Cherie Hyde.

There is no glossing over what Hyde did from 2003 to 2005, at least according to the facts as recited by the SCOV.  Hyde had a daughter, just ten years old in 2005.  She also had a 34-year-old male friend named who needed a place to stay on Sunday and Monday nights.  On numerous occasions Hyde had her friend bunk with the little girl, sharing her bed. Hyde routinely saw him in bed with her daughter as the mother closed the door to her daughter’s room.  The child would later tell her therapist that her mother had witnessed the man sexually molesting her on at least six different occasions.

Friday, September 18, 2015

Non-Attorney Representation

Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115

Mr. Bandler (Bandler) is the sole shareholder of a corporation, Michael Bandler & Company. He’s not an attorney.

Sometime in 2003, Bandler and his company sued Charter One Bank due to some issues involving an account. As often happens with civil cases, there was arbitration, and the case went back and forth between arbitration and court a few times. At some point, the case headed to class-action arbitration.

In 2012, Bandler, on behalf of the company, signed a retainer agreement with Cohen Rosenthal & Kramer (CRK), which I assume is a law firm, agreeing that CRK would represent the company at the arbitration. It was unclear whether CRK also represented Bandler individually, and according to the opinion, this is a point of dispute. In any case, Bandler and the company sued CRK surrounding this representation.

Monday, September 7, 2015

Breath-Test Blowback

State v. Perley, 2015 VT 102

By Andrew Delaney

To blow or not to blow? For most DUI defendants that is the question. Mr. Perley decided not to.

Mr. Perley was handed a bouquet of charges stemming from his involvement in a car accident. Get it? That’s right—I’m a dork. Anyway, there was the car accident; Mr. Perley took off. Two hours or so later, he showed up at the courthouse in his father’s car. He showed signs of impairment. He was arrested at the courthouse. During processing, he refused a breath test. He was charged with leaving the scene of an accident, violating conditions of release, and operating with a suspended license; he pled no contest to those.

He was also charged with criminal refusal and DUI#3. On those two, he filed a motion to dismiss. The trial court reasoned that the DUI#3 wasn’t going to fly and tossed it, but the criminal refusal would stick. Mr. Perley was in an accident, he fled the scene, showed signs of intoxication when he was found, and therefore the police officer had a reasonable basis to request an evidentiary test. Basically, the deal is that if you have a prior DUI, and you refuse a law-enforcement officer’s reasonable request for an evidentiary test, you may be found guilty of criminal refusal.

Saturday, September 5, 2015

"Collapse," Coverage, Clarity?

Equinox on the Battenkill Management Assn., Inc. v. Philadelphia Indemnity Ins. Co., 2015 VT 98

By Andrew Delaney

The parties in this case have really long names, so we’re just gonna nickname them Equinox and Philly right from the get-go. Equinox manages a condominium complex—say that ten times fast—and Philly insures it. A number of the condo units have cantilevered balconies. I’d imagine they’re a little nicer-looking than (though as you’ll soon learn, perhaps not as sturdy as) the ones in the picture, but the selection of you-really-don’t-have-to-pay-to-use pictures on the interwebs isn’t limitless.

Anywho . . . the balconies had some issues. The 2012 policy pretty broadly excludes defective workmanship, but covers “collapse” under an “additional coverage” endorsement. Collapse is not defined save for a few exclusions. I could get into the specific language but then we’d be here all day and I have to mow the lawn. You can always read the opinion for that.

When Equinox started a deck-replacement program in 2007, it found structural problems “including water damage to sheathing and studs behind lower-level exterior clapboards and cracking in several exposed joists” in one unit, and similar problems in other units. So they strengthened the balconies on the outside, but they didn’t do any inside work. 

Sunday, August 23, 2015

Restitution Blues

State v. Vezina, 2015 VT 56

By Timothy Fair

The old adage goes, “Crime doesn't pay.” Well, as the petitioner learned here, not only doesn't it pay, it can actually get pretty expensive. As opposed to most appeals, petitioner does not dispute his guilt, or argue that the trial court failed to suppress some critical piece of evidence, nor does he challenge the competency of his attorney, the judge, the jury, or the sweet woman selling coffee on the first floor. Instead, the issue which brings us to the SCOV is cold, hard cash.

On Sept. 20, 2013, Mr. Vezina pled guilty to one count of petit larceny. The charge stemmed from the theft of seven pieces of musical equipment—from an avid collector of rare percussion instruments—the previous year. The plea agreement required, in part, that the defendant pay restitution to the owner of the stolen property. The agreement did not, however, specify the exact amount of restitution to be paid. A few things you need to understand before we go any farther: (a) In Vermont, statutes mandate that restitution be considered whenever a victim of a crime suffers a material loss—material loss is defined as any uninsured out-of-pocket monetary loss (often an insurance deductible), uninsured property loss, uninsured lost wages and uninsured medial expenses; and (b) SCOV case law has established that only easily ascertained and measured amounts are recoverable under the restitution statute. Damages that are not readily ascertainable, such as pain, trauma and emotional trauma are not recoverable as restitution. 

So, what happens when the State and a defendant disagree on the amount of restitution to be paid? A contested hearing!

Monday, August 17, 2015

Fair Enough?

In re Brown, 2015 VT 107

By Andrew Delaney

In civil procedure a Rule 11 violation generally means that a lawyer filed something of questionable (if any) merit. In criminal law, it generally means that the trial court screwed up a plea colloquy (a fancy-lawyer way to say “conversation”). So, both rules deal with screw-ups, though in vastly different areas. Civil procedure is a really, really important class in law school most lawyers-to-be sleep right through.

This case falls into the intersection of criminal and civil law, known as post-conviction-relief (PCR) land. It really has little to do with civil Rule 11, but it does have a lot to do with criminal Rule 11 and civil Rule 56. I know those aren’t proper citations and my law review brethren are probably losing their proverbial you-know-what right now, but I’m trying to make this easy to understand.

In 2003, Mr. Brown pled guilty to some heavy-duty offenses, including aggravated sexual assault of a minor and lewd and lascivious conduct with a minor. He agreed to “a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions.” The court accepted the guilty plea but held off on sentencing until a presentencing investigation (PSI) was completed.