Tuesday, September 28, 2010

Caveat Venditor: Seller Beware

Gregory v. Poulin Auto Sales, Inc., 2010 VT 85 (mem.).

When Crawford Gregory purchased a 2001 Audi with a clean title, neither he nor the dealer knew that the car history belied its clean title and odometer certificate.  After some internet snooping, Gregory discovered the Audi was actually a salvaged and rebuilt vehicle, with an inaccurate odometer reading and nonfunctioning airbags; the car had been, through a mistake at the DMV, given a clean title before Poulin purchased it at auction.  Like any disaffected buyer, Gregory demanded a refund. Poulin suggested he track down the previous owner.  Instead, Gregory filed a suit against Poulin for violation of the Vermont Consumer Fraud Act and the Salvage Title Act.

In a twist on the old Roman customer service axiom, the trial court imposed a form of strict liability on Poulin under the Salvaged Motor Vehicle provisions of 23 V.S.A. § 2001(13).  The Supreme Court affirmed finding no language in the statute that would excuse a seller for either ignorance or mistake.  The Court relied upon its prior holding in Jensvold v. Town & Country Motors, Inc., 162 Vt. 580 (1994) and the basic meaning of the words “strict liability.”  

Unfortunately, for Gregory, the Court also reversed the trial court and ruled that § 2001 entitled Poulin to a set off in damages—meaning that Gregory must return the car or deduct its present value from any award in his favor.  On this basis and incomplete findings, the Court remanded the remainder of the case, including the consumer fraud claims, for further findings. 

No word on how the car is running these days.



Christine Mathias

Monday, September 27, 2010

Space--Time Continuum

Dear Reader(s),

Just a housekeeping note that for the next few weeks and from time to time we will be supplementing new cases with summaries of older cases.  That way we keep posting and building our library.  Our focus, though, will remain on providing summaries of new cases in real time.

Keep Reading!

---The Staff of SCOV

Shelburne Supermarket: Malpractice Proves to Be Out of Stock


The latest in a series of cases involving the members of the Clayton family and their intra-familial struggle for control of the Shelburne Supermarket.  For those unfamiliar with the case, it began in 1987 when Steven, the son, returned his controlling ownership shares in the Supermarket to his parents, Harry and Lucille.  The family court was not persuaded by this maneuver and put Steven’s interests in the Supermarket in the common assets pot for consideration.  Defeated in that forum, Steven asked his parents for his shares back.  Harry and Lucille, who had apparently soured on their son, refused.  Corporate stalemate and civil litigation ensued.   In hopes of laying those disputes to rest, and at the urging of counsel for the corporation, the Claytons engaged in binding arbitration in 2002. 

Enter Stephen Unsworth, Esq., who represented Harry and Lucille in the arbitration.  Again Steven’s attorney Leighton Detora, Unsworth sought to have Arthur O’Dea, the Arbitrator, affirm the transfer and reject any claims Steven had in the Supermarket.  In his written decision, however, O’Dea found that the actions by the Claytons in 1987 to return the stock were “a charade intended solely to thwart Steven’s wife from claiming an interest in the corporation” and thus the transfers were void ab initio.  In reaching that conclusion, the arbitrator necessarily found that the applicable statutes of limitations did not prevent him from considering the 1987 events.  Indeed, the arbitrator noted, the Claytons had entered into arbitration precisely to end the uncertainty that arose from the 1987 events, and had agreed at their own shareholders’ meeting prior to the arbitration that the statute of limitations would not apply in the arbitration.

Unsatisfied with the outcome of the arbitration, the Claytons began to loose the other arrows in their legal quiver.  Exit Unsworth. 

Through their new counsel, Harry and Lucille first moved in the superior court to vacate or modify the arbitrator’s decision; the superior court denied their motion and the Supreme Court dismissed their subsequent appeal.  See In re Shelburne Supermarket, 2010 VT 30.

Next, the elder Claytons and Steven locked horns in a dispute over past dividend payments.  The Supreme Court affirmed the superior court’s decision that the Claytons owed Steven over $500,000 in past dividends.  See Id. 

The Claytons also tried to block Steven’s purchase of a lot from the Clayton family corporation and sought past, present, and future CAM charges on the purchase and Steven’s previous use of the lot.  Clayton v. Clayton Investments, Inc., 2007 VT 38A (mem.).

Last, while the dividend dispute was pending, the Claytons filed the suit underlying this appeal.  They sued Unsworth, his law firm at the time of the arbitration, and his current firm.  They alleged Unsworth had committed malpractice for a litany of reasons, chief among them his waiver of the statute-of-limitations defense during the arbitration.  The Claytons argued, in fact, that this waiver was so clearly malpractice that they should not be required to introduce expert evidence to prove it. 

The defendant lawyer and law firms quickly prevailed; the superior court agreed with them that the malpractice claim failed because the alleged malpractice, even if it did occur, was not the cause of their damages.  More fundamentally, however, the Claytons failed, with respect to all of their malpractice rationales, to submit any affidavits or other admissible evidence to support the claims.  Rather, they relied on unsworn arguments of counsel, unsupported by the record, which could not meet their burden.  The Supreme Court could have affirmed the superior court’s decision on this basis and not reached out to the merits of the claims.

The Supreme Court, however, also took pains to reject on its merits the Claytons’ claim that Unsworth’s “waiver” of the statute-of-limitations defense in the arbitration was negligent.  To the contrary, the court held, the statute of limitations simply had no application to the arbitration at all; the statute of limitations operates only to bar untimely claims from being brought in a court of law, not to prevent parties from freely deciding to enter into arbitration. “Certainly, parties are free to agree to arbitrate all kinds of disputes, including old ones.”  The Claytons had made that free choice, and the Court would not relieve them from its consequences.

Whether this will be the end of Shelburne Supermarket’s impact on Vermont case law remains to be seen.

Gavin Boyles

Peeping Tom: Poor Position Overturns Verdict


Court reverses conviction of attempted voyeurism where state failed to show Defendant had committed overt act.

On September 17, 2010, the Vermont Supreme Court reversed Defendant’s conviction of attempted voyeurism since the State failed to prove sufficient evidence of Defendant’s intent to view Complainants “intimate areas” as defined by Vermont’s voyeurism statute 13 V.S.A. § 2605(a). 

The facts are simple.  Complainant lived on the second floor of a Colchester apartment complex.  Defendant was her neighbor and could hear her shower turn on and off.  The shower in Complainant’s second-floor bathroom had a window that overlooks the parking lot.  The bottom of the window hits at Complainant’s mid-chest.  On two occasions, Complainant caught Defendant standing in the parking lot staring at her bathroom window with his hand on his crotch while she showered. 

Defendant was charged with voyeurism in violation of Vermont’s voyeurism statute which makes it a crime to “intentionally view . . . the intimate areas of another person without that person’s knowledge and consent with the person being viewed . . . has a reasonable expectation of privacy.”  13 V.S.A. § 2605(b)(1).  By definition, intimate areas include the female breast, which is defined as the any portion of the breast below the areola.

The Trial Court convicted Defendant of attempted voyeurism following a supplemental instruction to the jury on attempt.  Despite Complainant’s claim that Defendant could view her intimate area from the parking lot below, the jury found that he could only see above the mid-breast.  The Vermont Supreme Court reversed the conviction for attempted voyeurism since Defendant’s actions did not constitute an “overt act” required for attempt.  “An overt act must advance beyond mere intent and ‘reach far enough toward accomplishing the desired result to amount to commencement of the consummation.’”  Since Defendant could not view Complainant’s intimate areas from the ground, he would not be able to consummate the crime of voyeurism. 

The fine line in this case is that had Defendant been able to view Complainant’s intimate areas on the ground—which Complainant argued he could—he would have been convicted not of attempt, but of the crime of voyeurism itself.  Given the language of the statute, peeping toms can rest easy since there’s a window, literally, for the voyeuristic to view substantial portions of a woman’s breast, for extended periods of time, by staring into an area where a person would have an expectation of privacy, without risking conviction of voyeurism or even attempt.  The opinion is arguably most significant, however, for its strict application of the “overt act” requirement of attempt.    

Jennifer McDonald

State v. Amidon: Say It with Flowers


As part of his September 2008 plea agreement stemming from charges of sexual assault, Defendant agreed to plead guilty to the charges in return for a suspended four to ten year sentence with three probation conditions: (1) he was not to participate in friendships or relationships with women or men who have children under the age of eighteen; (2) he was to abide by a 9 p.m. curfew; and (3) he was not buy, have, or use any regulated drugs unless prescribed by a doctor.

You see where this is going.

At approximately 10:30 p.m. on April 12, 2009, police came to Defendant’s home on an unrelated matter and found that he was not home.  After learning that the police were looking for him, Defendant voluntarily went to the police station at 10:45 p.m.  He smelled of marijuana and admitted that he “took a couple hits off a joint” that evening.  When questioned about his relationship with a woman named Bonnie, Defendant confirmed that she had three children.  Upon his arrest for probation violations, Defendant asked police to have his mother deliver the flowers to Bonnie that were in his car.

At trial, the court found that the State met its burden of proving a probation violation by a preponderance of the evidence and reinstated Defendant’s original suspended sentence.  On appeal, Defendant argued that the State failed its burden because it did not submit evidence on the ages of Bonnie’s children, who might all be over the age of 18 and still living with their parent.  The Court reasoned that the State met its prima facie burden by presenting evidence from Defendant that he revealed the existence of the children in a meeting with his probation officer who had examined him in the context of his probation condition.  The Court reasoned that it was then up to Defendant to present evidence to rebut the ensuing presumption the children were minors and that without such evidence the trial court’s conclusion that Defendant had violated the first probation condition was reasonable. 

Defendant then raised the argument that the condition violated his first amendment right to free assembly.  The Court rejected this argument as an impermissible collateral challenge that could have and should have been raised at sentencing or on direct appeal.  By failing to challenge it then, Defendant waived his rights and must now change residence.  No word on whether Bonnie enjoyed the flowers or intends to get more serious.

Daniel Richardson

Thursday, September 23, 2010

Inexplicable Continuity

Greetings!

You have stumbled upon the SCOV Legal Blog.   SCOV stands for the Supreme Court of Vermont, a pretentious title that the actual Vermont Supreme Court has never used but one that gives us a vowel for our acronym.  This blog is dedicated to expanding legal scholarship in Vermont by posting summaries of current Vermont Supreme Court cases.  By doing so, we are taking up, in 21st Century manner, the long standing tradition of legal digests with an aim to give practitioners real time summaries of recent Vermont Supreme Court cases. It is our expectation to begin humbly and grow to offer Vermont practitioners and scholars of all geographic stripe a resource that encompasses the state and nature of legal practice in Vermont.  Please keep coming back.  In the next few weeks we intend to offer twice-weekly updates in the form of case summaries and a regular feature entitled The Cultured Barrister.  We look forward to your comments and input.---The Editorial Staff of SCOV