Sunday, May 21, 2017

Solar Flare

Get it? 
Russell v. Hernon, 2017 VT 45

By Andrew Delaney

The most-important lesson in this case is that the basis for a prejudgment-interest start date has to have a discernible basis.

Mr. Russell was involved in efforts to develop solar facilities and possibly sell solar tax credits. I keep getting calls from folks with interesting accents trying to get me to put solar panels on my house. I don’t believe these are related, but I do enjoy messing with people who call me up and try to sell me stuff. There is nothing more entertaining than exasperated telemarketers (email me for NSFW link to a conversation with “Microsoft”). Digression is a way of life here at SCOV Law.

Back to the story . . . so Mr. Russell, Mr. Hernon, and a couple business entities are involved in this solar-facilities-and-tax-credits project. According to Mr. Russell he was the concepts guy and the head admin person.

Sunday, May 14, 2017

Some Assembly Required

"Umm, I think we're missing a piece."
Airi v. Nagra, 2017 VT 42

By Andrew Delaney

The lesson from this appeal is that if you appeal a trial court judgment and don’t order transcripts, you’re gonna have a bad time.

Mr. Nagra appeals from the trial court’s judgment in favor of Mr. Airi. Briefly, Mr. Airi agreed to do some hotel-management work for either Mr. Nagra or for Mr. Nagra’s companies. There were FBI raids and restructuring, a receivership, and some other twists and turns along the way. During that time, there were two periods during which Mr. Airi contracted to do stuff with the receivership, complete certain hotel management tasks, and to complete hotel financing projects—stuff Mr. Nagra couldn’t do because of pending criminal charges and other legal issues.

Mr. Airi never got paid. So he sued Mr. Nagra. Mr. Nagra didn’t show up for the court trial. The court took evidence and entered judgment against Mr. Nagra for just shy of thirty grand for the work Mr. Airi did.

Key Party

"Seriously, do not lose
this key: it's the only
one we've got."
State v. Giguere, 2017 VT 40

By Elizabeth Kruska

The Canaan, Vermont police department—in sparsely-populated Essex County—gets locked at night. To get in after hours, you have to locate the key. You don’t need to resort to extremes or anything, you just need to call the police chief.

This system works great except that sometimes the chief goes out of town. And from what I can gather from this opinion, if the chief is out of town, and he has the key, ain’t nobody getting in to the Canaan Police Department. This likely isn’t a big deal except for the fact that in this sparsely-populated part of Vermont, there aren’t a lot of police departments, which means there aren’t a lot of breath-testing machines in the area that can be used during a DUI processing.

Let’s be fair. I have never been to Canaan, Vermont. I’d like to go there sometime. In fact, I’d like to visit all the towns in Vermont. We even have a club for people who do that. The thing about Canaan is that it is far away. You may think there are places close to Canaan. Yes. It is close to Canada. In fact, it touches Canada. Canaan, in fact, not only touches Canada, but it is somehow partly oddly north of New Hampshire. It’s the town way up in the northeast corner that curls over and sort of wraps around New Hampshire a little bit. It’s all the fun of being in New Hampshire, except you still have to pay sales tax and it’s not New Hampshire.

The Art of Business and Insurance Policy Coverage

'Business' as Usual? 
Shriner v. Amica Mutual Ins. Co., 2017 VT 23

By Thomas M. Kester

“Choose a job you love, and you will never have to work a day in your life.” This sentiment also  applies to part-time jobs—and maybe, by extension, to your insurance policy exclusions.

Plaintiff, a retired physician, is a glassblower who moved his equipment onto his residence, specifically, his garage. Plaintiff blew glass with a friend and the two operated a glassblowing enterprise. Plaintiff identified himself as a “artisan” on his tax forms and filed a Schedule C form for business profits with the Internal Revenue Service, describing his business type as “blown glass manufacturing.”

On January 12, 2012, “The furnace exhaust system in a piece of glassmaking equipment malfunctioned and caused a fire that destroyed the garage and all the property and equipment inside it.” Plaintiff was covered by a homeowner’s policy issued by Defendant. “The policy carried a $25,000 deductible and contained an exclusion from coverage for structures from which a business was conducted.” I smell trouble brewing. Plaintiff claimed $88,354.91 in personal property lost. Defendant accepted Plaintiff’s claim and calculated replacement cots at $42,422.97. After applying the policy’s deductible, Defendant made an advance cash payment of $1,460.53.

Thursday, May 11, 2017

Language Wrangling

This is not the same Carter.
State v. Carter


Lawyers learn very early in their careers that words need to mean what they are supposed to mean, and if there’s ambiguity everything stops. Legal writing tends to be short and to the point. Sentences are subject-verb, and that’s about it. That way the writer and the reader know what the words mean.

There can be a bit of a collision when a statute isn’t written clearly, and it can lead later to some legal word wrangling. The folks under the golden dome say, “hey, we need a law about [insert topic here] and this is what we want it to do.” They write something and they have their legislative counsel look at it and as the sausage gets made, things get added or taken out, and eventually they get to a statute that seems to achieve the goal. This can be a problem when the new statute doesn’t seem to square with another one that already exists.

Damned If You Do, Damned If You Did

You get TWO opinions in one post! That's some deal we're
offering here at the SCOVLawBlog. Just pay separate
shipping and handling.
State v. Rondeau


This case feels like a long and winding road (sorry, Beatles), so stay with me.

Defendant Michael Rondeau was convicted of two counts of aggravated sexual assault following a jury trial.  The victim in this case is his daughter.  Count One of the State’s information (an information contains the charges which the prosecutor submits to the court – this gets the prosecutorial ball rolling) alleged that he committed aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) at some time between October 1989 and October 11, 1997, when the complainant was under thirteen years old and defendant was at least eighteen years old.  This charge carries a potential sentence of ten years to life.  Count Two alleged that he committed aggravated sexual assault of a child as part of a common scheme in violation of 13 V.S.A. §3253a(a)(8), during the period between October 12, 1997 and October 11, 2000, when complainant was under sixteen and defendant was at least eighteen.  This charge carried a harsher sentence: twenty-five to life.  Needless to say, Rondeau was facing some hard time.

Monday, May 1, 2017

Wave That Waiver

Wave (waive?) it wide, and high.
In re: Jankowski


Let’s stroll through how a criminal case proceeds. Normally criminal cases start with an allegation, which must be proven by the State. If the defendant is convicted, then he or she gets sentenced. If there’s a sentence that involves probation, there will be probation conditions or requirements. If the defendant then violates one or more terms of probation, we sort of start over again with having a hearing where the State has to prove the merits of the violation allegation. If the State proves the violation the case goes to sentencing. If something goes legally wrong relative to legal issues within the merits or sentencing hearing, normally the defendant is allowed to appeal. If something goes wrong collaterally to the proceeding, the defendant can file for post-conviction relief (PCR). If the PCR is granted, the case jumps back to the stage of the case where things went sideways.

In this case, Mr. Jankowski filed a PCR based on things that happened during a probation violation. In 2010, he pled guilty to a sexual assault charge and was sentenced to 5-20 years, split with 3 years to serve. That means he’d serve 3 years in jail and then be released on probation. If he were to violate his probation and have his probation revoked, his full sentence of 5-20 years could be imposed. Under normal circumstances he’d be eligible for release at his minimum, or, the 5 year mark, but would be on supervision for the balance of time between 5 and 20 years.

Tuesday, April 25, 2017

Estoppel Denied


State v. Nutbrown-Covey


If you went to law school, you likely remember that hazy, confusing time during the first semester when nothing makes sense and when it feels like you’re trying to study and learn a new language all at once. This is around the time first year students learn about claim preclusion and issue preclusion. Your brain probably fogged over and you thought, "wha?" Luckily, it's one of those things that in practice makes perfect sense. 

This is an issue preclusion case. Issue preclusion, or collateral estoppel, is part of the legal doctrine that allows a party to litigate a matter once. This generally pops up in civil cases, but sometimes there’s cross-over into criminal cases, as you’ll see here. The point is that a party doesn’t get to keep litigating the same thing over and over if generally all the moving pieces to the matter are the same.

Sunday, April 23, 2017

Silence is . . . Problematic

To speak or not to speak? Now that
is the question . . .
State v. Ladue, 2017 VT 20

By Andrew Delaney

First, the story. Once upon a time, or more specifically, at around 11:00 p.m. in Burlington on January 27, 2014, a woman heard a crash outside of her house. She then saw a late-90s silver-colored Honda with a loud exhaust backing away from a Subaru. The police were summoned. 

Mr. Officer showed up and chatted with Ms. Witness. Mr. Officer went looking for the Honda, was not successful in his efforts, and so returned to the scene of the crime. Lo and behold, a silver Honda was parked nearby. So Mr. Officer talked to Ms. Witness and she said, “That’s the car, officer!”

So, Mr. Officer ran the plates, identified Mr. Ladue as the registered owner, and moseyed over to Mr. Ladue’s house. Mr. Ladue was not home, but his mom was. As Mr. Officer was getting into his patrol car, however, Mr. Ladue pulled into the driveway driving the silver Honda. So Mr. Officer stopped his egress and walked up the driveway and confronted Mr. Ladue. The first question Mr. Officer asked him was whether anyone else had driven the car that night. Mr. Ladue allegedly said, “No.” Mr. Officer didn’t see any visible damage to the vehicle.

Friday, April 21, 2017

The Debt That Doesn't Die

H&E Equipment Services, Inc. v. Cassani, 2017 VT 17

By Andrew Delaney

I know a thing or thirty about debt following one around. Thanks to law school, I’ll be paying on loans until I die. There’s no sense in filing bankruptcy because student loans generally don’t go away even then. I’m not complaining. But debt can be a bit of a pain in the you-know-what. I’m not a fan. I’m guessing Mr. Cassani also is not a fan.

H&E Equipment Services, Inc. (H&E) got a judgment against Mr. Cassani in Arizona in 2001, and renewed the judgment twice in Arizona. In early 2015, H&E filed a complaint in Vermont to collect the judgment—a little over $56K plus interest—and attached a 2011 “judgment renewal affidavit” from Arizona.

Mr. Cassani moved to dismiss the complaint under this statute, which gives one eight years to collect on a judgment in Vermont or else it’s game over. Mr. Cassani apparently argued that the original 2001 date was the controlling date rather than the 2011 renewal. The trial court said, “Nice try, but no cigar.” Mr. Cassani moved for reconsideration. Still no cigar.