Wednesday, February 13, 2019

Perturbed by a Pergola

This is a monstrous pergola. You'd definitely
need a permit for this one.
In re: Langlois


Friends, we’ve got ourselves an equitable estoppel case here. I’ve written about equitable estoppel before. Ah, it was a simpler time then. 

This mess starts back in 2014 neighbors in the lovely town of Swanton. The relevant neighbors are Langlois and Heller. Langlois has a house with a patio, and from what I can tell, the patio has been there for many years. Team Langlois thought it would be nice to construct a pergola to go over the patio. 

Restitution, Releases, and Remands

Nothing to do with restitution.
I just like horses. And rainbows.
State v. Blake


Here’s another case from the wayback machine. We’ve got a little bit of a backlog. Are you interested in writing SCOV posts? If so, you could join us on this train we call the SCOVLawBlog. The only requirements are the ability to read supreme court decisions and boil them down (somewhat) succinctly into blog posts. Bonus points for being hilarious, writing in haiku (or other lyrical poem form, we aren’t picky), and having a pop culture reference for just about any moment. Interested? Get in touch! 

Sunday, January 27, 2019

Confession: This Summary Is Long

This case has nothing to do with ducks.
We just like ducks. 
State v. Kolts, 2018 VT 131

By Elizabeth Kruska
OK, friends, let’s talk about the so-called “Miranda warning.” I often tell people it’s the best known but least understood part of constitutional criminal procedure. If I had a nickel for every person who has said to me, “They didn’t read me my rights! That means I win on a technicality!” I would: (a) be able to retire; or (b) be out on bail (which I paid with nickels) because I sort of want to punch someone who calls the Fifth Amendment a “technicality.” It’s not. Because the Supreme Court said so.

Let’s jump into the wayback machine to the early 1960s when Ernesto Miranda got arrested for some crimes. (yes! Ernesto! He was a dude! Not a lady in a fruit hat! And probably not a dude who looks like a lady, but I have scant proof of that.) The evidence was circumstantial at best. Police interrogated him for a couple hours and ultimately he confessed. Police never told him he had the right not to talk to them, they never told him that anything he said could be used against him in his criminal case, and they never told him he could talk to a lawyer before saying anything.

Mr. Miranda ended up being convicted of his crimes and his case wound its way through the various appellate courts before landing before the United States Supreme Court. SCOTUS, then led by Chief Justice Earl Warren, consolidated Ernesto’s case with several others and issued the landmark ruling that gave way to what we now know as “Miranda warnings.” In short, the Big Court was worried about the imbalance of power between police and suspects. Police can use all sorts of tactics and pressures on people to get them to say things, and at some point, gentle pressure becomes full-on coercion. Citizens need to be warned that they don’t have to participate in this at all and if they choose to, they do so knowing whatever they say can be used against them. And if they don’t know what to do, they are allowed to have a lawyer help them. But not a Lawyer Dog for reasons explained below.

Too Many Words

A visual depiction of a 90-word sentence
In re MC, 2018 VT 139

By Elizabeth Kruska

Pro tip: if your sentence is 90 words long, that sentence is too long.

This is a short opinion and hopefully this will be a short summary. Hopefully I’ll lose those five pounds of winter weight before beach season. We can all hope for a lot of things.

MC was a child involved in a CHINS case in 2014. In 2018 his parents voluntarily relinquished their parental rights to MC. This put MC in the sole custody of DCF.

DCF wanted to place MC in a placement out of state. This happens sometimes in DCF cases. Vermont’s great but we don’t necessarily have all the placements and programs that kids in our state might need. But, DCF can’t just put a child in another state because DCF doesn’t have jurisdiction in any other state. DCF has to have an agreement with that state’s DCF counterpart, and they do that through the Interstate Compact on Placement of Children. Or, as we in the juvie biz call it, the ICPC.

A Place For Everything

This is what lawyers call: "Not fun."
In re: PRB No. 2018-087, 2019 VT 5

By Elizabeth Kruska

If you go hire a lawyer, depending on what the legal issue is, you might end up paying the lawyer a retainer that goes into the lawyer’s client trust account. I always explain the trust account retainers like this: it’s always the client’s money. It always belongs to the client. (There are some exceptions with flat earned-at-the-time-of-payment fees and the like, but this is the usual course). I just hold onto it in my special trust account, and I earn against what’s there. Then when I have earned that money, or paid out a particular expense, it comes out of the client’s money. If there’s money left when we’re done, it goes back to the client.

The other thing about this is that under the rules, lawyers are supposed to use a pooled, interest-bearing account. This does a couple things. First, it prevents a situation where lawyers would have to open brand new bank accounts for each client (can you even imagine how cumbersome that would be?). Second, if all the money is together in one account, more interest can be generated. By law, the interest goes toward helping pay for legal services for people who cannot afford it. Lawyers aren’t supposed to mix their funds with client funds. There can be enough non-client money in one of these accounts for ordinary bank fees, but that’s about it.

This all sounds fairly simple. But it’s not. Since every client knows his or her money is always his or her money, they need to know that their own money will always be there and how it’s going to be used. That means the lawyer is going to have to have a system to make sure each particular client’s funds are clearly accounted for, that the lawyer is keeping the client updated about this, and that the amount each client has (or should have) adds up to the amount in the account. Yikes.

Family Ties

Like a candle in the wind . . .
Hayes v. Hayes, 2018 VT 102

By Eric Fanning

Widower-plaintiff Patricia Hayes appeals the trial court’s grant of summary judgment for defendants, niece and nephew Allison and Brian Hayes. Why did Ms. Hayes sue her niece and nephew, you might ask? Here it is: Her husband died, but before he died, he removed her as beneficiary of his retirement fund and designated niece and nephew as beneficiaries. Naturally, she believes she was cheated and is still entitled to that money. Nothing brings families together like litigation around inheritances!

Backstory: Ms. Hayes and her late husband were married in December of 1979. They separated in 2016, and husband filed for divorce in June of 2016. Husband died in September of 2016, before the divorce was finalized. A year before he died, husband rolled over about $119,000 from his work retirement plan into a traditional IRA managed by defendant LPL Financial, LLC. He designated his niece and nephew as beneficiaries. The facts showed that they were close, and that niece and nephew visited husband regularly. Before opening the traditional IRA, wife was the sole beneficiary of his deferred compensation retirement plan through work.

So, anyway, husband died, and his will was admitted to probate, the court having found that it was properly executed and authenticated (both prerequisites to allowing a will to be probated). Ms. Hayes consented to the will’s allowance (meaning she took what was left to her in the will), and received a personal estate valued at about $95,000, husband’s probate estate, and sole possession of the marital home. Ms. Hayes filed suit in June 2017, requesting a declaratory judgment that her late husband’s IRA beneficiary designation was void as a matter of law. The trial court 86’ed her case via summary judgment for defendants. Enter SCOV.

Sunday, January 13, 2019

Devises Divested

Umm, a different kind of vested. 
Collins v. Collins, 2017 VT 70

By Andrew Delaney

You might notice this case is over a year old. It happens we have a backlog. We can always use more writers. If you’re interested in joining our merry band, email me. A sense of humor and a basic grasp of the English language are the only requirements.

This case is about the effect a third party changing trust beneficiaries around can have on a property division in a divorce. The parties were married for about 30 years. The primary marital asset was the home. There was a vested inheritance of about $4K on wife’s side and wife owed $16K on a student loan for the parties’ son. All that is background.

Husband’s parents established a revocable trust about twenty years back (we like to round the numbers ‘round here). Parents put their real estate in the trust, named themselves as trustees and made husband the sole beneficiary. Husband would become successor trustee upon parents’ incapacity. Upon both parents’ death, the trust would become irrevocable and be distributed to the beneficiary. There was also a $38K CD in the trust that the parties used to secure a $38K loan for themselves.

Tuesday, January 1, 2019

Exclusion Error

Now, if you look closely . . . 
Rainforest Chocolate, LLC v. Sentinel Insurance Co., Ltd., 2018 VT 140

By Andrew Delaney

Insurance coverage can be a tricky beast. Exclusions can be fluffier than an Arctic Fox’s fur coat. And sometimes, in all that confusion, the trial court might apply an exclusion that doesn’t fit.

That’s what happened in this case.

A Rainforest Chocolate, LLC (Rainforest) employee got an email from his manager. The email told the employee to pop roughly $20K into an outside account with an electronic-funds transfer. What the employee didn’t know is that what SCOV calls an “unknown individual” and we’ll call a “hacker” had hijacked the manager’s email account and sent the email.

Saturday, December 22, 2018

Going Public?

Some like holes in the ground
Long v. City of Burlington, 2018 VT 103

By Eric Fanning

I’m going to start this post on a somewhat wonky, possibly pedantic, law nerd kick. Just bear with me (or, switch to reddit—your call). The Public Records Act is Vermont’s public-records-transparency law. Not to sound grandiose, but this statute (and others like it in our sister states, and at the federal level) forms part of the bedrock of our constitutional republic. The idea is that government officials, employees, etc. derive any and all of their official power from the people, and therefore are “servants” of the public (this is actually a part of Vermont’s Constitution—one of my favorite Articles of Ch. 1, incidentally). If you take this one step further, then you see that public officers must be accountable to the people in all respects of the performance of their official duties. This concept doesn’t really mean anything unless the public is free to access and inspect documents prepared and used by the government—“even though such examination may cause inconvenience or embarrassment.” Thus, we have the Public Records Act.

Thanks for sticking with me there—now let’s get down to the nitty gritty . . . let’s get this show on the road. The factual background of this case shouldn’t be news to most people (at least those of us who live in the greater Burlington area). The City of Burlington sought to create a public-private partnership with the owners of several downtown blocks which used to comprise the Burlington Town Center Mall, more commonly referred to nowadays as “that giant hole in the ground.” The City and the property owners/developers, BTC Mall Associates want to redevelop said city blocks into a new and improved mix of residential units, office space, retail shops and a parking lot.   

To undertake this project, the City contracted with a consulting firm called ECONorthwest to aid in the nuts and bolts of the public-private partnership. BTC and ECONorthwest signed a nondisclosure agreement (NDA) which basically said that BTC would provide confidential business information to ECONorthwest so that it could complete its assessment of the project, provided that it not release such information to anyone, including the City.
  

Sunday, December 16, 2018

Enough Evidence?

Can you hear me now?
In re B.C., 2018 VT 126

By Elizabeth Kruska

This is an appeal of a CHINS case, but the issue is really about evidence. So, although the name of the case is B.C., the appeal isn’t exactly about B.C. Sort of like how “Alice’s Restaurant” was not the name of the restaurant, it was always just the name of the song.

The child involved in this case is B.C., who was born December 31, 2016. At that point, Mom had 2 other children and was already working with DCF relative to those kids. DCF’s work with Mom centered around issues of domestic violence and substance abuse.

I could get bogged way down in the facts of this case, and honestly, in my first draft of this post I did. The truly relevant facts are these. There was an existing CHINS case involving Mom, Dad, and B.C., which was filed shortly after his birth. The child was taken into DCF custody and lived apart from his parents. Initially the goal was to get B.C. home with both parents, but the parents split up, and Mom wanted to try to get to parent B.C. on her own. A merits hearing was held in early spring 2017 and taken under advisement. While that decision was under advisement, DCF started to worry about Mom, due to a relapse and the fact she missed a visit and a counseling appointment.