Saturday, October 22, 2016

Sufficient Supervision?

In re PRB File No. 2016-042, 2016 VT 94

By Andrew Delaney

Every once in a while, the SCOV likes a professional responsibility board (PRB) decision so much that it publishes it as a SCOV opinion. This leads to me making the same Beyoncé-says-put-a-ring-on-it joke ad nauseam. Wuh uh oh uh uh oh oh uh oh uh uh oh.

Respondent is licensed in both of the twin states. He focuses on transactional law. While he was working for a firm, he hired a non-lawyer assistant to work for him. She’d previously worked for his wife and done a good job. She seemed smart and capable, so when respondent started his own firm, he took her with him.

While with the old firm, the employee hadn’t handled the accounts. But at the new firm, she did. Respondent made the deposits himself and confirmed they were recorded in QuickBooks. But employee did most of the other stuff—for example, she opened the monthly statements and reconciled the accounts.

Something tells me this is not going to end well.

Thursday, October 20, 2016

Rate Increase Rules

In re MVP Health Insurance Company2016 VT 111

By Elizabeth Kruska

You know what’s an enormous mess? Health insurance. I like to think I’m a smart person. I am completely confounded by health insurance. I suspect I am not alone.

Here’s what I think happened here. The Green Mountain Care Board (GMCB) is Vermont’s administrative agency charged with allowing/disallowing health insurance companies to provide certain policies in Vermont. GMCB also has to approve rates and any changes in rates. GMCB is supposed to review those filings and allow or disallow the rates and increases. There is a statute that enables GMCB to act, and requires that GMCB determines whether rates are affordable, whether they promote quality care, whether they protect solvency of the insurer, and if the rates are fair. There are timetables for filing, since if there is an issue, it has to be sorted out in a timely way. Insurance companies need to know if they can continue doing business in Vermont, and policyholders need to know if they need to find different coverage.

MVP, a health insurance company, provides health insurance via an association for farmers called Agri-Services. GMCB disallowed a rate increase filed by MVP for the Agri-Services policy. MVP appealed, arguing that it’s an unconstitutional delegation of power for an administrative agency to be able to allow or disallow rate increases. MVP also argued that GMCB didn’t make proper findings to support its conclusion of disallowance. They made a final argument regarding erroneous interpretation of the statute, but SCOV doesn’t even get that far because it reverses based on improper findings.

A Good Kick In The Face

State v. Bean, 2016 VT 73

By Amy E. Davis

Two residents live in a residential facility for persons with mental illnesses. Defendant points his finger at the Claimant. Claimant says, “You need a good ass-kickin’,” and kicks at him. Claimant’s vision goes blurry, and there’s pressure and heat on one side of his face. Defendant gets charged with domestic assault. Defendant testifies that he suffers from schizophrenia and does not remember what started the altercation. A staff member testifies that she saw Defendant punch Complainant in the head.

Defendant’s argument at trial relied on two theories: first, that the complainant was not a “household member” under the domestic assault statute, and therefore could not be convicted of domestic assault; and second, that it was self defense because the complainant had kicked at him and told him he needed his ass kicked.

At the end of the State’s case, the State asked the judge to give a jury instruction on simple assault as a lesser-included offense of domestic assault. The rationale being that all of the elements were the same except the household member element. Defendant’s counsel agreed that simple assault was a lesser-included offense, but objected to the possibility of a second charge so far into the trial. The court instructed the jury on the simple assault after closing argument anyway, saying:

The Procedural Property Paradox

Cenlar FSB v. Malenfant, 2016 VT 93

By Thomas M. Kester

The Supreme Court of the United States has said that “relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case.”1 This quote embodies the legal maxim lex non exacte definit, sed arbitrio boni viri permittit (“the law does not exactly define (this) but leaves it to the judgment of an honest man”), and this case is a great example of when, how much (and to whom) the law should provide relief.

Once again, good ‘ol mortgage issues are back before the SCOV. If I seemed gloomy in my last post, it was mostly due to the SCOV not addressing a specific question . . . that and Tom Brady not playing in the opening four regular season games (#QuadrupleRingBling #199 #IamTheLockerRoomGuy). But my frown has been turned upside down because the SCOV answers the burning question left on everyone’s mind: what is the impact of a court’s dismissal with prejudice of a lender’s claim on a promissory note and accompanying foreclosure action with respect to the lender’s ability to bring a subsequent claim for default on the note?

In 1993, Borrowers executed a promissory note to GMAC Mortgage Corp., the predecessor-in-interest to Cenlar FSB (Lender), secured by a mortgage. On May 1, 2008 Borrowers default on loan and it appears that Lender accelerated the note.

Saturday, October 8, 2016

Developing Duties Deux

Kuligoski v. Brattleboro Retreat, 2016 VT 54A

By Andrew Delaney

For me, this amended opinion is like a frustrating find-the-differences puzzle. We reported on the issued-in-May opinion just a few weeks ago because it took me a long time to work through it. Naturally, I was just thrilled to see that the SCOV had issued an amended opinion.

I’m going to attempt to just highlight the differences in the amended opinion here. If you notice a mistake or something I missed, please let us know in the comments.

The amended opinion starts off with an entry order noting that the amended opinion replaces the issued-in-May opinion. The State’s motion to file for reargument as amicus curiae is granted and the appellees’ and amici curiaes’ motions are denied. Within the entry order, Chief Justice Reiber and Justice Skoglund dissent, opining that while the majority has made changes to “narrow” (their snarky quotation marks, not mine) its holding, that’s not enough. There were “an astonishing number of motions for reargument,” and the State’s motion in particular represents a “clear and dispassionate analysis of both the immediate and long term damage resulting from the majority’s misguided judgment.” The dissenters think the majority should vacate the opinion and get rid of the novel duty it imposes.

Reefer Reboot

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

By Elizabeth Kruska

SCOV brings us a sequel to the C&S case from earlier in the summer with an amended opinion. I didn’t print the original opinion, because trees, and now all I can see is the amended opinion. From what I can tell, the amendment didn’t change the overall outcome or much in the way of the rationale.

I’m not going to go over the whole of the opinion; I did that already and although it was fun, it’s the kind of fun you only need to have once.

It looks like the court added some additional rationale regarding the recyclable freezer tubs and why they aren’t exempt from tax. C&S had previously sought to have their freezer tubs exempt from tax. The Commish said, “think again,” and C&S appealed. One argument they raised is that there are some reusable packing materials that are exempt—those are materials that have a usable life of three years. The freezer tubs have a longer life.

I believe the Court added some more language about this “3-year rule” itself. C&S argued it was invalid. The Court got into some details about this rule. It essentially said that whether or not this rule is invalid is irrelevant since the freezer tubs have a longer shelf life than 3 years anyway. Whether or not the tax department enforces the rule consistently is also beyond what the Court would consider.

I think that’s it. If there’s something I missed, leave it in the comments.


Solomon v. Guidry2016 VT 108

By Elizabeth Kruska

This is a case that got dismissed, and the dismissal was appealed by the plaintiff. My favorite part of this opinion is the footnote on page 1 that says the defendant joined the plaintiff in the appeal, meaning, they both were appealing the same thing. As my favorite movie character, Inigo Montoya, said, “I will sum up.”

Ms. Solomon and Ms. Guidry were a couple and were joined in a civil union in July of 2001. Unfortunately, the relationship came to an end sometime in or around 2014. They wanted to split up, which is a perfectly normal reaction to a relationship ending.

But. In the meantime, both Ms. Solomon and Ms. Guidry moved to North Carolina, which, isn’t exactly “progressive” or “nice to gay people” or “thinking with functional brains when it comes to things like going to the bathroom.” I’m sure there are some nice things about North Carolina, like beaches and barbecue, but we’re not here to talk about that.

Finicky Findings

Lourie v. Lourie, 2016 VT 57

By Amy E. Davis

Husband and Wife married in 1992, had two children together, and separated in 2012. At the time of the final divorce hearing, one child was over 18, and the younger was only a few months shy of her 18th birthday. Parties owned a flooring business together though most of their marriage.

Husband filed for divorce in March 2013, and, two months later, the parties entered into an agreement that addressed spousal support, child support, and business debts. The agreement included a provision that Husband would pay Wife $4,000 per month for support for five years after he paid all of the business and personal debt. This was never incorporated into a temporary order.

By the time the final hearing rolled around, the parties agreed on parental rights and responsibilities, but was divided on the issue of maintenance—mainly, how much support. Wife wanted the pre-divorce agreement of $4,000 per month, but noted that even if the court were to find this was the agreement, the court needed to make an equitable division. Husband did not object to paying support, but thought $4,000 per month was too much.

Statutory Sealing

Seal. Seal? Get it? 
State v. Villeneuve, 2016 VT 80

By Amy E. Davis

In December 2001, Defendant pleaded guilty to lewd and lascivious conduct with a child. The conduct leading to the charge occurred when Defendant was twenty years old. Defendant successfully completed probation, including sex-offender counseling in June 2004, and was successfully discharged from probation that same month. Defendant has no subsequent criminal convictions.

In September 2015, Defendant asked to seal his record under subsection (g) of this statute on the grounds that it had been more than two years since his discharge from probation, and that his underlying conviction occurred before he turned twenty-one. The trial court denied the petition because the underlying offense was a crime listed under this statute, and its reading of the statute was that because the underlying offense was under that statute, the record may not be sealed. Defendant’s interpretation was that this only applied to subsequent convictions, and not the underlying conviction.

Reviewing de novo, the SCOV looks to the plain, ordinary meaning of the applying-for-sealing statute. In reading subsection (g), the SCOV concludes that the language is inclusive of all criminal convictions, and does not limit applicability based on the nature of the initial crime to those not listed under the other statute. Based on the plain language of the statutes read together, the trial court’s denial was in error. But the sealing of the conviction is not automatic: the trial court must also make findings as to whether the Defendant has been rehabilitated. For that, the SCOV reverses and remands so the trial court can make such findings.

A Stressed System

In re A.S., 2016 VT 76

By Amy Davis

In this interesting per curiam opinion from the SCOV, our highest court resolves the actual appeal in a mere five paragraphs, then spends an additional 12 paragraphs addressing a problem we on the juvenile docket know all too well: scheduling.

Mom appeals the adjudication of her children as CHINS, claiming that the court erred in not considering evidence of changed circumstances after the State filed the CHINS petition. The State filed for CHINS based on a history of assaultive and abusive behavior from Mom’s relationship with K.S.’s father, and also on a history of substance abuse. The court adjudicated the children as CHINS on the events that led up the filing of the petition. The SCOV dismisses Mom’s appeal because this objection was not raised before the family court, thus resolving the issue on appeal.

The SCOV goes on to write about the long delay in the merits hearing of this case. The CHINS petition was filed on December 4, 2014. The court held a preliminary hearing on December 17, 2014 granting conditional custody to Mom. The State filed for an emergency care order on January 13, 2015, which the court granted. The court indicated that a 1-½-hour-long hearing was needed, but due to scheduling dilemmas and an overwhelmed juvenile docket, that hearing did not take place until November 5, 2015. The merits hearing was held on January 8, 2016, more than a year after the original petition.