Sunday, July 23, 2017

You Can Bite This Apple Twice

"See that? Looks like a clerical error."
McLaughlin v. Pallito, 2017 VT 30

By Andrew Delaney

Most of the time, you only get one bite at the proverbial apple. I’ve always wondered about that phrase. Who doesn’t take more than one bite of an apple? I consulted the Google and the results are inconclusive—several folks think it’s a biblical Garden of Eden reference, a few think it’s a Snow White thing, and then there are some weird sexual theories out there. (Because aren’t there always?) This has nothing to do with this case. But I’ll be damned if I’m going to be the only one wasting time on this phrase.

The issue is this case is whether a prison superintendent can order a second hearing on a rule violation when the first hearing panel gives a not guilty based on a clerical error. SCOV says the second hearing is okay, which instinctively seems a bit strange, so let’s dig into it.

Mr. McLaughlin is a guest at state-subsidized housing—the kind very few people willingly live in. He got hit with a DOC charge—commonly referred to as a “D.R.”—for fighting. As is required in such cases, the prison held a hearing.

Friday, July 14, 2017

Bites at the Apple

That's it! No more biting! 
Deutsche Bank National Trust Company v. Watts, 2017 VT 57

By Elizabeth Kruska

How many bites at the apple are authorized? One.

Sort of related. I’m currently surrounded by Apple Products. I’m like that guy in the old commercials: I’m a Mac. But I just noticed that the ubiquitous Apple logo has one bite taken out of it, and now I wonder why. I wonder if it’s simply because it’s good design, or if it’s something larger. Maybe it means you only get one bite at the apple, so make it count. I don’t know. Maybe that’s a little too deep for right now.

Anyway, the Wattses—Paris and Skip—had some property and executed a mortgage back in 2006, and the note ultimately ended up with Detusche Bank, who we’ll just call “Lender.” The Wattses, or the “Borrowers” didn’t make their mortgage payment that was due on December 1, 2008. The Lender wasn’t hip to this action and filed a complaint in the appropriate Vermont Superior Court seeking foreclosure and all sorts of associated fees. In February of 2010, Lender filed an affidavit with the court indicating that service was complete.

Then for a very long time, just like in Vermont itself, nothing happened.

Sunday, July 9, 2017

Show Your Work

"And then the calculator said . . ."
Stevens Law Office v. Symetra Assigned Benefits Service Co., 2017 VT 61

By Andrew Delaney

When I was younger, I was quite good at math. The thing I never liked was having to show my work. If I got the right answer, what did it matter? Then, when I was headed to law school, I was told something like, “Now, it doesn’t matter if you get the right answer—the right answer is largely irrelevant. The important thing is to show your analysis.” I thought that seemed doubly silly. Now that I teach college classes, I think I know why: answers are boring but analysis can be entertaining. I’m kidding . . . sort of. The bottom line is that in law—like in math class—it’s important to show your work.

Here’s the story. Mr. Larock hired Stevens Law Office to represent him in a case. Stevens Law Office required a $16K nonrefundable retainer. Mr. Larock has a structured settlement, and the way the $16K would get paid is in 2022, the settlement funding company would pay the $16K directly to Stevens Law Office. Mr. Larock agreed to these terms.

Stevens Law Office then asked the trial court to approve the deal as required by this statute. There was a brief hearing, and an inquiry with bar counsel about the propriety of nonrefundable retainers (they’re okay as long as there’s notice of nonrefundability, scope, and the fee is reasonable). The trial court then issued a decision, concluding that because Stevens Law Office’s representation was ongoing, any determination of whether the fee was reasonable would be necessarily speculative.

Saturday, July 8, 2017

Keeping Tabs on Mom

Unfortunately, the kind of GPS
featured in this summary does
not come with detailed maps 
State v. Kane, 2017 VT 36

By Eric Fanning

What we have here, folks, is a violation of probation (VOP) appeal. Probation is a court-imposed criminal sentence where the convicted offender is released into the community instead of going to jail. Virtually all probationers have to abide by certain conditions while serving their sentence. If the probationer violates those conditions or fails to regularly check in with their probation officer (PO), they get a complimentary extended stay at the Big House, courtesy of the State.

Defendant/appellant Patricia Kane plead guilty to custodial interference (she took her son from his legal custodian and crossed state lines). She was sentenced to two to five years, all suspended except for one year. After serving the unsuspended portion of her sentence in prison, she was released on probation. As a condition of her probation, Kane was required to stay 500 feet away from her son’s school and home, avoid contacting him without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. She was also required under Condition 32 to submit to electronic monitoring as directed by her PO.

Under Condition 32, the Department of Corrections (DOC) required Kane to wear a GPS unit. One of the components needs to be charged twice a day for two hours at a time or else it loses juice and the signal is lost. The details of the alleged VOP’s aren’t terribly important here, but basically, the State says Kane willfully disregarded Condition 32 by doing such a terrible job of keeping the GPS unit charged. Kane claims the charging station made her phone unusable, and that it made weird fax machine-like sounds, and so she had to unplug it to make phone calls. At her probation revocation hearing, State put on evidence that the unit was disconnected on multiple occasions for lengthy periods of time, and that this, along with the testimony of her corrections officers, was enough to conclude that she was willfully disrupting her GPS monitoring. The criminal division found that Kane did willfully violate her conditions of probation.

The All New Let’s Make A Deal

Weaver . . . get it?
Weaver v. Weaver, 2017 VT 58

By Elizabeth Kruska

My husband and I have a deal in our marriage. Whoever cooks dinner is absolved of cleanup duties. If I cook, he cleans up. If he cooks, I clean up. There was this fabulous time right after Hurricane Irene when our town didn’t have water. That was also the exact same day he decided to make a delicious chicken and vegetable stir fry, using—and I am not making this up—seven bowls, three pans, two cutting boards, and all the spoons. But because we didn’t have running water I couldn’t wash the dishes. I had to rinse off the dishes in the stream behind our house because if I didn’t they’d get funky in the sink, and because a deal is a deal. He cooked, I cleaned up. In the days following we ate a lot of PBJ’s until the town felt it was safe to turn the water back on. I’m not at all ashamed to admit that PBJ and PBR is a perfectly adequate dinner in August. (Do not confuse Pabst Blue Ribbon with the Professional Bull Riders Association. Both are PBR’s, both are great, but they are significantly different in terms of thirst quenching and contact with very large, horned animals.)

This deal is not a big deal. And in terms of marriage-related agreements, it’s fairly minor. A bigger, and very common agreement often has to do with raising children. It’s completely normal for one spouse to work while the other either works part time or stays home if a family has kids. There are loads of reasons for this, and all are completely valid.

The spouse who doesn’t stay home gets a significant benefit. Although it’s a one-income situation, it ensures that the kids are home and raised according to how the family wants to do that. It also potentially means that the spouse at home keeps the home in working order. It also means the working spouse has the benefit of continuity of career, which leads to advancement and higher rates of pay.

Sunday, June 25, 2017

Lesson Learned

And . . . done.
In re Pope, 2017 VT 55 (mem.)

By Andrew Delaney

I am not a fan of the way SCOV is publishing decisions these days. I’m not sure why SCOV is self-publishing like a struggling pulp fiction author, but when the Department of Libraries was in charge, at least there was some semblance of method to the madness. And now that there’s a new website, none of the old links work. Go ‘head, click a vermontjudiciary.org-associated link on any summary more than a few months old or any case link on the older summaries. Also, published entry orders like this one somehow end up in some black hole in Googletopia and not on the browse-by-date list. At any rate, this has nothing to do with the opinion, but if someone out there would like to really scour the vermontjudiciary.org site and make a comprehensive index so we can cross-reference it in connection with our mission to keep the public informed that’d be cool. Just shoot me an email.

We now return to our regularly scheduled programming.

In this decision, SCOV puts its seal of approval on the Professional Responsibility Board’s decision to reinstate Attorney Pope’s suspended law license. 

Saturday, June 24, 2017

Bifurcation

Bifurcated Avocado
State v. Bangoura, 2017 VT 53

By Elizabeth Kruska

This opinion is really short. In fact, it will probably take me longer to write about it than it does to read the actual opinion. So, go read the opinion, too.

Mr. Bangoura appealed his conviction for a second-offense DUI. SCOV affirms.

The issue here has to do with bifurcation of the trial. There are some crimes that someone can commit multiple times and the maximum possible punishment doesn’t change. For example, someone can commit petit larceny over and over by stealing multiple times, and the maximum possible penalty allowed by law doesn’t change. On the other hand, our criminal code has other crimes that are known as predicate offenses, and DUIs fall into this category. If someone gets charged with a first offense DUI, there’s a particular punishment available. If a person gets charged with a DUI when they already have a prior DUI conviction, the penalty steps up to a higher level.

Keep Doing What You’re Doing

Keep on keepin' on
North Country Sportsman’s Club v. Williston, 2017 VT 46

By Elizabeth Kruska

Long story short: the North Country Sportsman’s Club is allowed to keep doing what it’s been doing.

Here’s the longer version. The North Country Sportsman’s Club, which I’ll just call the Club, has been around for some fifty-odd years. There isn’t a super-clear description of the Club in the opinion, but I take it from the description that it’s a shooting range available for skeet shooting. People probably also do shooting practice there with targets and whatnot.

In 2004 the Town of Williston made an ordinance prohibiting certain levels of noise. However, the ordinance exempted certain noise, including sport shooting under certain permitted conditions. The ordinance also specifically called for an agreement to be made between the Town and the Club to outline when the Club could operate. The ordinance doesn’t mention this particular club by name, which makes me wonder if there are multiple shooting clubs or ranges operating in Williston, or if the Town just didn’t want to call out this particular club specifically in the ordinance. Not that it’s super relevant; it just made me wonder.

Sunday, June 18, 2017

Paperwork Problems

Ruh roh! Rat's rot ronrurrent!
Perron v. Menard, 2017 VT 50

By Andrew Delaney

This case has some moving parts that could be hazardous to small children. Let’s hope I get the story straight.

New York wants Mr. Perron to come do time in the Empire State on a grand larceny bid. Mr. Perron was “initially detained on a prerequisition warrant”—whatever that is—but then the Vermont Governor issued two different warrants for Mr. Perron’s arrest. Best I can figure, the trial court denied Mr. Perron’s petition for a writ of habeas corpus and then denied his challenge to the governor’s warrants. How did we end up here?

Back in 2014, Mr. Perron was indicted in New York on a bunch of charges. Then he got hit with a federal wire fraud charge out of Florida. He was taken into New York custody and took a plea in New York on one count of grand larceny, for which he got a two-to-four-year bid. Mr. Perron was then shuffled off to the feds and convicted on the federal charge, racking up thirty months on the federal side. The sentencing documents didn’t say anything about whether it would be concurrent or consecutive to the New York sentence. As Scooby Doo might say, “Ruh roh. Rat’s rot rood.”

Sunday, June 4, 2017

Up On The Roof

LeClair v. LeClair, 2017 VT 34

By Elizabeth Kruska

This case reads a lot like a law school hypothetical. In fact, part of me wonders if there’s a Vermont Law School professor of torts out there reading this opinion thinking, “This is a mighty fine way to teach premises liability.”

The facts here are fairly simple. Plaintiff is the grandson of Defendant. Defendant is an experienced builder and Plaintiff is an experienced roofer. Defendant went to his own son, Plaintiff’s dad, and wanted to get some work done on the roof of his place of business. Plaintiff’s dad went to Plaintiff, who wasn’t working at the time, and let him know about a roofing job for Grandpa.

One day in October, Plaintiff and a friend of his went to Defendant’s building to work on the roof. They’d already started the job, and had taken off some of the shingles, leaving only the underlay material exposed. Being October, it was chilly and some frost had formed on the roof. Plaintiff didn’t want to go up on the roof, because the conditions made it slippery. Defendant told him to wet down the roof and get to work. Plaintiff did as he was instructed, and unfortunately, fell to the ground below, injuring his head and neck.