Sunday, June 17, 2018

Certification Required

If you do med mal, a reminder string
tattoo isn't necessarily out of the question
Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53

By Andrew Delaney

A medical malpractice complaint generally requires a certificate of merit. You might think this isn’t a big deal. After all, it’s just a one-pager (or so) that says the lawyer or plaintiff has consulted with a medical expert and the medical expert has said the case has merit. But, it’s a big old deal. We’ve written about it before. If you do any medical malpractice work, memorize this statute, boys and girls. It may just save you from very uncomfortable conversations with your client and your malpractice carrier.

So, in this case, Mr. Quinlan’s wife, Lincy Sullivan, went to see a physician’s assistant on October 21, 2014. She had shortness of breath, leg pain, and chest pain. The PA concluded that it was allergies, prescribed an inhaler, and sent Ms. Sullivan home. She died three days later from a blood clot in her lung.

Mr. Quinlan hired an attorney. The attorney consulted with a PA and the PA wrote an opinion letter opining that the defendant’s treatment of Ms. Sullivan didn’t meet the standard of care on a number of levels. That letter and Ms. Sullivan’s records were provided to the defendants pre-suit.

Hold the Phone

Orange is for voluntary dismissal . . .
because we say so

Federal National Mortgage Association v. Johnston, 2018 VT 51

By Elizabeth Kruska

I’m writing this post while I’m on hold. Fortunately for me (and by extension, for you, gentle reader), this particular company with whom I’m on hold has something better than hold music: hold facts! Since I’ve been on hold I’ve learned about the origin of Flag Day, the exact time of the summer solstice this year in the Central Time Zone, fireworks injuries, and the meanings of various colors of roses during the Victorian Era.

Here’s the scoop in this case. Federal National Mortgage Association (let’s call them “the Bank” because that’s loads easier) owned a particular parcel of property in Rutland, which was mortgaged by the defendants, the Johnstons. Reading between the lines, it would appear the Johnstons got behind in making their payments, and in June 2016, the Bank filed an eviction action. There was an issue with service (that issue being “service did not happen”), and as a result the action was dismissed in November of 2016.

In March 2017, the Bank filed another eviction action, alleging that the Johnstons were the former mortgagors and current occupants of the property. The Johnstons didn’t answer the complaint right away, and in June 2017 (possibly on Flag Day, but the opinion doesn’t mention this), the Bank moved to dismiss the action. The court entered a dismissal without prejudice.

Saturday, June 2, 2018

First Amendment Fiasco

There's not much you can't say . . .
State v. Schenk, 2018 VT 45

By Charlie Buttrey

Writing for the majority in the 2012 case United States v. Alvarez, Justice Anthony Kennedy wrote that “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”

William Schenk took Justice Kennedy’s remarks to heart when he distributed flyers advertising the Ku Klux Klan to the homes of two women, one a Mexican-American, the other an African-American. The one-page flyer depicted a hooded and robed Klansman mounted on a horse, holding a burning cross. Behind the rider were images of the Confederate flag and the colonial thirteen-star American flag. Across the top of the flyer were the words: “Join the Klan and Save Our Land.”

For doing so, Schenk found himself charged with two criminal counts of disorderly conduct. The complaints alleged that he “recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” Schenk moved to dismiss on the grounds that his conduct was protected under the First Amendment. The trial court denied the motion, ruling that the conduct was not protected speech since Schenk allegedly used the flyer as a tool to convey a strong message of intimidation and the potential for harm. Schenk entered a conditional guilty plea, reserving the right to appeal the trial court’s decision, and was sentenced to concurrent terms of 119 to 120 days, with credit for time served.

Factoring the Factors

This is a red factor canary.
It's just a cool bird. 
Bratton v. Holland, 2018 VT 54

By Elizabeth Kruska

This case is a pretty good example of how hard custody cases can be when figuring out what is really best for kids. There are lots of different pieces a court needs to take into consideration when it needs to figure out what is really in the best interest of the child.

Mom and Dad were married. They had a child, D, in 2007. In 2011, Mom and Dad divorced. Mom got sole physical custody subject to visitation with Dad. Dad lived in Vermont, and Mom moved to North Carolina. The plan was that Dad would have contact with D by Skype and would also get several weeks of in-person visits per year.

This didn’t work. Mom withheld and prevented visits between Dad and D, and also prevented Dad from having Skype sessions with D. Dad filed a number of motions to enforce and motions for contempt. Mom didn’t appear for any of the hearings that were held over the course of a couple years. Finally the court found Mom in contempt, finding that she had willfully violated the visitation order. The court ordered that it was no longer in D’s best interest to live with Mom, and issued an order requiring that D be returned to Dad.

Guess what didn’t happen.

Saturday, May 19, 2018

Suit For the Sewer

Did someone say "sewer"?
Hayes v. Mountain View Estates Homeowners Association, 2018 VT 41

By Elizabeth Kruska

Longtime readers of our fair blog know that we here at SCOV Law keep an eye on Vermont Supreme Court trends. We know the current hot issues tend to be shenanigans with probation conditions and shenanigans with homeowners associations. This is the latter. Sort of.

Did you know—and it is entirely possible you did not know this—that individual people are allowed to own sewer systems? I’m looking around my workspace right now and I see that I own a lot of things, many of which I probably don’t need. One thing I know I don’t own, nor do I want to, is a sewer system. Because the problem, apparently, is if you own a sewer system, that when you die (and really, I’m not trying to be grim but we’re all going to die), it probably ought to be clear what’s going to happen with that sewer system. And you know what, as an added bonus, let’s throw in some roads and a water system, also, just so that we’ve got a big problem to untangle.

Let’s back up to the late 1970s. Mr. and Mrs. Hayes owned some land in Manchester and decide to develop that land in to a housing subdivision. It was a different time. There was still lead in our gasoline. Coca-Cola came in glass bottles. “Bad President” was defined as “Peanut Farmer.”

Unstated Intent

Need to shed some light here.
In re Cynthia Pinheiro, 2018 VT 50

By Elizabeth Kruska

Ms. Pinheiro filed a motion for post-conviction relief (PCR) based on a defective plea colloquy. Specifically, her position was that during the plea colloquy where she pled guilty to an assault charge, the trial court didn’t identify the mental element of the crime.

Backing up. In 2014 Ms. Pinheiro pled guilty to aggravated domestic assault for shooting her ex-boyfriend in the leg. When a defendant pleads guilty to a criminal charge, the trial court has to go through a colloquy with the defendant. This is done so that it’s clear that the defendant knows he or she is giving up his or her Sixth Amendment trial rights and in some cases, appeal rights. The court has to be satisfied there are actual facts to back up the charge. Generally, this must be done in open court and the defendant must acknowledge that she is giving up these rights and the facts.

Here, the court asked the State’s Attorney to indicate on the record what it would have to prove at trial, and the facts backing it up. There was some discussion, and in this, the court never advised Ms. Pinheiro of the mental element of the charge she faced.

Alexa, Get Me Off the Registry

Careful what you say . . .
State v. Charette, 2018 VT 48

By Amy Davis

The Vermont Sex Offender Registry is a website available to the public that contains information about sexual offenders in Vermont who are required to register. This case questions whether an individual is required to register if the “victim” in the case wasn’t actually a kid, but an undercover police officer. In other words, does it really count if it’s just a sting? Why yes, yes it does.

Defendant pleaded guilty to attempting to lure a child based on his attempt to meet someone be believed was a minor. Supposedly, this wasn’t the guy’s first time trying to do that. Apparently, someone complained about him talking to minors inappropriately, so an investigator posed as a 13-year-old girl named “Alexa” and reached out to him on Facebook. Honestly, the guy should have just asked an Echo Dot to talk dirty to him (NSFW)—it would have ended better. But he asked “Alexa” to meet up with him for sex and he got arrested when he showed up for the meeting.

The plea agreement called for a to-serve sentence, but the parties disagreed as to whether Defendant was required to register as a sex offender. Defendant argued that the plain language of 13 V.S.A. § 5401(10)(B) requires a minor victim. The statute reads, “A person who is convicted of any of the following offenses against a victim who is a minor… (v) sexual exploitation of children as defined in chapter 64 of this title… (x) an attempt to commit any offense listed in this subdivision.” The court concluded that Legislature intended "minor victim" to include an undercover police officer posing as a minor. Defendant appeals.

Monday, May 7, 2018

Picky Pleadings

Are you sure about this? 
Bonk v. Bonk, 2018 VT 15

By Amy Davis

My primary focus in my law practice is divorce and everything that comes with it, such as, what do we do about the kids? Even if we work out a parenting agreement to finalize the divorce, things can change over time, sometimes warranting a change in the parenting schedule. This case looks at whether the trial court can modify parental rights and responsibilities when it’s not specifically raised in the parents’ pleadings.

Mom and Dad divorced in August 2016. They have two children. The parents resided in Enosburg while married, and after their divorce, Dad remained in Enosburg, and Mom relocated to St. Albans. The children continued to attend the same child care and school programs they did prior to the divorce.

The final stipulation ordered that the parents share legal and physical custody (we call it “rights and responsibilities” in Legal Land). The children’s primary residence was with Mom, and the children would attend school in the town where Mom resided (except St. Albans—apparently the parents didn’t like that school).

Sunday, April 29, 2018

Missing a Piece

You need all the pieces . . .
State v. Sawyer, 2018 VT 43 (mem.)

One day after the shooting at Stoneman Douglas High School in Parkland, Florida left seventeen people dead, Jack Sawyer was arrested and was charged with four felony complaints for allegedly attempting to cause a mass shooting at Fair Haven Union High School. One count alleged that he attempted to cause bodily injury to another with a dangerous weapon. Another alleged that he attempted to commit first-degree murder. The remaining two counts alleged that he attempted to commit aggravated murder.

At his arraignment, Sawyer entered pleas of not guilty, and the trial judge ordered him held without bail.

Vermont law generally prohibits defendants from being held without bail, but makes an exception when two elements are satisfied: one, the defendant is charged with an offense punishable by life imprisonment and, two, the evidence of guilt is great. In Sawyer’s case, the trial judge ruled that the State had satisfied its burden with respect to both prongs.

Credit for Custody?

The "fence" has to be intact
State v. Byam, 2017 VT 47 

By Eric Fanning

Defendant/convict Dale Byam appeals a trial court’s denial of his motion seeking credit for time served while he was under pretrial conditions of release. SCOV affirms—but let’s look at the facts of the case first.

Byam was charged with aggravated domestic assault and cruelty to a child. The Orange County Criminal Division imposed conditions of pretrial release including a 24-hour curfew (with exceptions for legal and medical appointments), and that he had to stay in Orange County. The court allowed two exceptions to his curfew. The first allowed him to leave home on Saturdays from 9:00 a.m. to 12:00 p.m. to run errands like checking his mail, going to the bank, and visiting his mother, etc. The second allowed him to visit one of his kids in Washington County.

While he was out awaiting trial, Byam was arrested in Windsor County after being caught driving with a suspended license, and the State charged him with five misdemeanors: two counts of violating conditions of release, driving with a suspended license, resisting arrest, and escape. He posted bail and the Windsor Criminal Division released him on conditions similar to the ones the Orange Criminal Division had imposed, namely a 24-hour curfew with exceptions for medical and legal appointments. The Windsor court referred his case to the Orange Court, and he ended up pleading guilty to the original charges, as well as escape, and violating his conditions of release.