Saturday, September 16, 2017

Prospective Duties

This draft isn't going to work
Strong v. Fitzpatrick, 2017 VT 35

By Andrew Delaney

This case is about whether a lawyer owes a duty to a potential beneficiary when drafting—or more specifically not drafting—a will. Spoiler alert: there’s no duty when not drafting a will; there can be a duty when a will is actually drafted.

Let’s back up a bit for some context. Mr. Strong’s mom and stepdad got hitched in the ’60s. Mr. Strong and his siblings grew up on the homestead property, which consisted of two sections: “(1) a portion where the house was situated (House Portion), and (2) a large tract of undeveloped land (Upper Meadow).” In 1992, Mr. Strong moved back to the homestead to care for his mom and stepdad. According to Mr. Strong, stepdad told Mr. Strong that he was to inherit the entire property when stepdad and mom died.

Stepdad died in 2000 and mom inherited the entire homestead. Mom had executed a will in 1999 that left everything equally to Mr. Strong and his siblings. Mr. Strong didn’t like this plan and he discussed it with mom. According to Mr. Strong, mom said “I will leave you the house, the barn and the lower meadow, and you three kids can divide up the upper field.”

Sunday, September 10, 2017

Direct Harm

In the immortal words of the
Wu-Tang Clan: "Dollar dollar bill, y'all."
State v. Stewart, 2017 VT 82

By Elizabeth Kruska

In criminal cases, the court has to consider the question of restitution if there is a victim that suffers uninsured losses. Let’s use an easy example. Suppose Danny Defendant goes out and smashes up Victor Victim’s mailbox. Sure, Danny gets charged with unlawful mischief, and maybe he pays a fine or goes to jail as a sentence. But where does that leave Victor? He’s got no mailbox through no fault of his own, and if he has to replace it because of what Danny did, he’s out the cost of a new mailbox.

Enter restitution. The court can order that Danny pay Victor the cost of the mailbox.

In criminal court restitution is very narrow and is only limited to uninsured losses suffered by a direct victim of the crime. So if Victor’s neighbor, Noreen Neighbor, decides to go get a new, ultra-strong mailbox because she’s afraid that Danny might damage her mailbox, she doesn’t get restitution for that, since she’s not a direct victim of the crime. And if Danny had a no-deductible insurance policy that covered his mailbox, he wouldn’t be able to collect restitution because he’d have insurance available to pay for the loss.

Saturday, September 9, 2017

What Is Love? (Baby Don’t Suspend my License)

Just in case you didn't get the
reference in the title . . .
State v. Love, 2017 VT 75

By Amy Davis

This case considers when the court must hold a final hearing on a civil suspension of a driver’s license. Does the court have to hold it within 21 days of the preliminary hearing, and, if it’s not, does the civil suspension need to be dismissed. Yes and yes!

So, this statute says that when you violate this statute, meaning that if you drive under the influence, then the State has to notify you that they intend to suspend your driver’s license. If it’s your first time drinkin’ and drivin’, the suspension takes place within 11 days of receiving notice, unless you ask for a suspension hearing. Then, your license isn’t suspended unless the the court orders so, after a hearing. However, if you’ve been caught a second time, then your license is automatically suspended within 11 days of the notice, regardless of whether you ask for a suspension hearing or not.

This suspension hearing is a two-part process: a preliminary hearing and a final hearing on the merits. The preliminary hearing “shall be held within 21 ones of the alleged offense.” Then the final “to be held within 21 days of the date of the preliminary hearing” but no more than 42 days after the alleged offense without the defendant’s consent or for good cause shown. When it comes to a first offense, these limits are directive and not mandatory. The SCOV here reasons that these limits are mandatory for second or subsequent violations.

Intended Consequences?

Leave the gun at home
State v. Baird, 2017 VT 78

By Charlie Buttrey

When recently retired Vermont Supreme Court Justice John Dooley and longtime trial Judge Michael Kupersmith both take your side in a legal dispute, you’re usually in pretty good shape.

Usually.

Keith Baird discovered that truism the hard way. 
 
The Baird matter involves the somewhat unusual and arcane matter of the “felony-murder rule.” Vermont law provides that a defendant can be convicted of murder, even if he did not commit the murder and even if he had no intention of committing a murder, if the State can prove three things: (1) that he intended to commit the felony of arson, sexual assault, aggravated sexual assault, burglary or robbery; (2) that he exhibited the necessary mental state for second-degree murder (intent to kill, intent to do great bodily harm, or “a wanton disregard for human life”); and (3) that someone was killed in the course of the crime. Under the felony murder rule, whether the defendant actually committed the murder, or even intended for a murder to be committed, is immaterial.

Sunday, September 3, 2017

Family Trust Issues

Allegedly, there are people who
like to drive these things. 
Lamson v. Lamson, 2017 VT 41

By Andrew Delaney

Love. It’s what makes a Subaru a Subaru. If you listen to VPR, you’ve heard this tagline. I’m guessing the Lamson brothers might have a couple things to say about that. Personally, I hate Subarus.

Roger and Frank were both beneficiaries and trustees of a trust established by their mom. Roger sued Frank in the probate division, saying that Frank’s personal use of mom’s cars violated the trust. The probate division found for Roger. Frank appealed to the civil division, which gave Frank summary judgment on the use-of-cars issue. Roger appeals.

Let’s back up. Frank, Roger, and a bank were all trustees of mom’s revocable trust. In 2012, Roger filed for an accounting, later amending his complaint to argue that Frank had breached the trust and distributed funds in Frank’s self interest. The probate division removed Roger, Frank withdrew, and the probate division appointed an independent institutional trustee and a guardian for mom.


A Tale of Two States

Virginia or Vermont? 
Pierce v. Slate, 2017 VT 63

By Eric Fanning

I’ll bet everyone reading this has heard the old saying, “Home is where the heart is.” Right now you might be asking yourself why I bothered to begin this post with possibly the most clichéd of all clichés. 

 I’ll tell you why—because in a sense that’s pretty much what this case is about: Where is home? And just as I’m sure all of you have heard that saying before, I’m also willing to bet that every single family law attorney who is reading this post wishes the law were as simple as, “Home is where the heart is.”

Coming back to the land of reality, we have the case of parents Laurie Pierce and Josh Slate. These two had a child who was born in Vermont in June 2016. Soon after the baby was born, the family moved to Virginia, where Father had been a long-time resident. Upon arriving in Virginia, mother signed a lease for an apartment, got a job, transferred her address with the US Postal Service, applied for and started receiving welfare benefits, and transferred the child’s medical records from Vermont. If I didn’t know any better, I’d say that at this point mother seemed pretty darn determined to stay and raise this kid in Virginia. Turns out, I’d be wrong.

Saturday, September 2, 2017

Ice, Ice Baby

The ice is back with a
not-so-brand-new invention
Abajian v. TruexCullins, Inc., 2017 VT 74

By Elizabeth Kruska

Nothing like a good Vermont Supreme Court opinion in the waning days of summer to remind us about what inevitably lies ahead: winter. In the abstract, Vermont winter is beautiful. Crisp, brilliant days. Sparkling, swirling snowflakes. Cozy evenings with cocoa and a good book. In reality, it’s the longest eleven months we have here, or however long that dang-blasted season runs. It’s dark. It’s so cold sometimes you wonder if your lungs are going to ice over when you breathe outside. Oh, and then there’s the snow. Mountains and piles and buckets of snow. And ice.

And that brings us to the problem here. The Abajians own a house in Williston, and in 2001, decided to put on an addition and also to repair the roof. They hired an architect to design the roof. The prior roof had shingles, and as shingled roofs sometimes do, this one had the propensity to get ice dams. For those unfamiliar with ice dams, here’s what they are: they’re a pain in the tuches. They’re big wedges of ice that form in crevasses, or by the eaves of a roof. Then when snow melts and starts to slide, or water slides down (gravity! Yay!), the ice dam prevents the snow or water from moving. It’s gotta go somewhere, so it starts to leak into the roof. Nobody wants a leaky roof.

So, the decision was made to replace the shingled affair with a standing seam roof. Standing seam roofs are cool. The snow just slides right down to the ground with a loud and sometimes terrifying thud. No muss, no fuss, no ice damming, and no leaking.

Juror Issue Resolved

White Rabbit
State v. Perrault2017 VT 67

By Elizabeth Kruska

Long story short—this case gets affirmed.

Mr. Perrault was convicted after a trial for three counts of drug possession. Three counts, three different drugs (marijuana, a depressant, and a stimulant). The basic facts are this. Mr. Perrault was hanging out in a convenience store parking lot in downtown Burlington. A police officer drove past a few times, and each time saw Mr. Perrault sort of hanging around, looking generally suspicious. The police officer finally decided to pull in to the parking lot, and found Mr. Perrault sitting in the front seat of a car with a backpack between his knees. The officer asked the driver if he could search the car, and consent was granted. Then he asked Mr. Perrault if he could search the backpack. Eventually Mr. Perrault agreed.

The police found two jars of marijuana in the backpack along with a prescription bottle bearing Mr. Perrault’s brother’s name. Inside were blue pills and red pills. One pill makes you larger, and one pill makes you small. And the ones that mother gives you don’t do anything at all. Wait, no. Those are different pills; ask Alice about them. The pills in this case turned out to be Valium and Ritalin.

Mr. Perrault said the pill bottle was his brother’s (seems true, since it had the brother’s name on it) and he had forgotten to give it to him. It appears the prescription was written for Valium. What wasn’t clear, though, was why the Ritalin was also in the bottle. And also, why it was inside a little plastic baggie inside the bottle. Mr. Perrault gave a story that I won’t try to recreate here, except to say it feels a little bit like a rabbit hole and the police weren’t buying it.

Saturday, August 12, 2017

Things You Can Do In Half An Hour

In re: D.H. and S.C., Juveniles


Run a 5k. Bake a couple batches of chocolate chip cookies. Drive from Montpelier to Stowe. Watch a rerun of The Golden Girls on some random cable channel (we’ve all done it).

What could have happened in this case, but did not – which prompted a reversal – was to wait half an hour for a Mom to show up for court. SCOV says the fact the trial court did not grant a 30-minute continuance in a termination of parental rights hearing was reversible error.

For readers who don’t go to juvenile court, let me tell you how it goes. It is long. It takes forever. The cases never really go away. And there are far, far too many of them. Some parents really get it together and work hard and try to have their families together. Some parents find that the procedure is a punishment, and fade away as the case progresses.

Saturday, July 29, 2017

Harmony

State v. Joseph2017 VT 52

By Elizabeth Kruska

Mr. Joseph owns some land in Bennington County. He had some trees he wanted to cut down. Unfortunately, he strayed onto his neighbor’s land and cut down three of his neighbor’s trees.
He is all pine, and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He was charged with a type of trespass that forbade entering property and taking something of value which is parcel of the realty. Trees fit that description. While Mr. Joseph’s trial was pending, the legislature passed a timber trespass law that seemed to conflict with the existing law.