Sunday, August 12, 2018

Agree to Agree

So, just check the box? 
Penland v. Warren, 2018 VT 70

By Elizabeth Kruska

Life is pretty grand when people agree. That’s partly why this particular case got reversed.

Sandra Penland and John Warren were previously married and got divorced. As part of their divorce, the agreement was that they would each get 50% of Mr. Warren’s pension that he got from working as a teacher. The parties took the appropriate steps to divide the pension, the divorce was final, and they moved on.

Some years later, Mr. Warren discovered he had a health issue that may jeopardize the pension. If I read this correctly, if he dies, the pension payouts would end. That would mean Ms. Penland’s portion of the pension payouts would also end—and likely much sooner than both parties anticipated—which isn’t what either of them wanted. So, he and Ms. Penland discussed the matter and agreed they would change the divorce order so that he would keep the pension, making it only pay out to him during the rest of his lifetime, and he would give Ms. Penland a cash payment in the sum that would have been half the value of the pension. They both agreed this was a win-win situation; Ms. Penland would be made whole with the amount of money she believed she’d get, and Mr. Warren would be able to maintain the pension during his life. 

Auction Rules

How did BOA feel? 
Bank of America v. O’Kelly, 2018 VT 71

By Elizabeth Kruska

Ever been to an auction? They’re kind of fun, depending on the type of auction. Want some steers? Go to a cattle auction. Want some art? Go to an art auction. Want hidden treasures? You can often find those at an estate auction.

You can also buy real estate at auction. As you may imagine (for all those times you imagine real estate auctions), those have rules. Can you picture all the shenanigans that might go on if there weren’t real estate auction rules? I’m guessing probably not, since likely you’ve thought about real estate auctions fewer than four times in your lifetime, up to and including right now. But, to prevent issues with sale and title and all that happy stuff, we’ve got rules.

All right. So, the O’Kellys—Seamus and Jennifer—had a piece of property in Washington County that was subject to a foreclosure in 2015. They, and the Vermont Department of Taxes, were given a six-month redemption period in which to redeem the property. Everybody was noticed that if they didn’t redeem within six months the property would be sold at auction.

Who’s an Employee?

A little guidance
Perrault v. Chittenden County Transportation Authority, 2018 VT 58

By Elizabeth Kruska

This is a workers’ compensation case. In the interest of full disclosure, I am married to an attorney who defends workers’ compensation cases (or, as those in the biz call it, “comp”). I don’t pretend to understand comp like a pro, but I know basically how it works and I know a lot of the words. At my house we talk an awful lot about “medical end” and “permanent total disability” (which I’d like to call “perm totes” and on rare occasions “perm totes McGoats” but that hasn’t caught on) and that sort of thing.

Workers’ compensation is purely a creature of statute. It’s meant to provide compensation (obviously) for workers (obviously) in the event of workplace injuries. Suppose you’re walking up a flight of stairs at work and you slip and sprain your ankle. You need to be out of work for a couple days while your ankle heals and you need to go to the doctor to get it checked out. Easy-peasy lemon squeezy. That’s a workers’ comp claim, and you would get certain benefits for this. But they’re not all this obvious. And that’s because the Legislature, in creating the workers’ comp statutes, chose to define who is eligible for what and when.

Joanne Perrault was a volunteer driver for the Chittenden County Transportation Authority (CCTA). CCTA runs the buses in Chittenden County. It also has a program that provides transportation to certain eligible riders through a network of volunteer drivers. The volunteers have to pass a background check and are subject to rules and regulations set by CCTA in order to do the volunteering. They use their own private vehicles, which they use to pick up and drop off riders. They don’t get a salary, but they do get mileage reimbursement, and are required to log the time they spend waiting for riders.

Sunday, August 5, 2018

Something About Standing

A different kind
of standing
In re Guardianship of C.H., 2018 VT 76

By Andrew Delaney

What exactly is an “interested person” in the context of a guardianship for a developmentally disabled adult? I’m glad you asked because it just so happens that’s just what SCOV considers in this case.

C.H. is a developmentally disabled adult and has been under a guardianship since 2009. In 2015 her first guardian—an immediate family member—was removed for financial exploitation, and the Department of Aging and Independent Living (DAIL) became C.H.’s guardian. In 2017, Ms. Boulet aka “petitioner” moved to modify the guardianship so she could be C.H.'s guardian, alleging that she had known C.H. since C.H. was a child; that she is C.H.’s godmother and had known C.H.’s mother since they were little kids. Ms. Boulet also noted that C.H. is her “honorary niece,” and that she cared greatly about what happened to C.H.

C.H.’s counsel filed a motion to dismiss, arguing that Ms. Boulet lacked standing. The trial court agreed and dismissed petitioner’s motion to modify without any hearing because it concluded that petitioner lacked standing to modify a guardianship.

Substantiation Situation

Can't let that clock run out

In re M.S., 2017 VT 64

By Elizabeth Kruska

Here’s something you probably have not thought about: DCF substantiations.

There’s this odd creature of statute called the Substantiation. It’s part of child protection and happens largely off-screen. It’s like the Wizard of Oz behind the curtain.

There’s a child protection registry (let’s call it “the Registry” from here on out because that’s what it’s called). It’s a confidential list and is not accessible to the general public. If someone engages in certain behavior (or doesn’t, as the case may be) that causes a DCF investigation to take place, that person could be substantiated for his or her behavior. It’s a low standard to be substantiated—it’s based on the evidence obtained, that a reasonable person could conclude that a child was abused or neglected. 

Ability to Pay

This is a case about bills. Get it?
State v. Dwight, 2018 VT 73

By Elizabeth Kruska

Eisenhower. Howard. Schrute. These are some of your more well-known Dwights.

This case is State v. Dwight and it’s about restitution. It’s not about inventing the Interstate Highway System, or getting picked first overall in the NBA draft, or growing beets.

Basically, it’s this. Mr. Dwight punched a Mr. Richards. This resulted in Mr. Dwight being charged with an assault charge and Mr. Richards having some pretty significant damage to his teeth and gums. It cost him about $21,000 for treatment to fix his teeth. Mr. Richards doesn’t have a money tree growing in his yard, or sufficient (if any) dental insurance to cover the expense. Mr. Richards was a college student when this happened. His parents were helping him pay for school. His dad also doesn’t have a money tree and gave him a choice: use the money the parents would have used for school for school, or use it for fixing your teeth. Mr. Richard went with the teeth option and took out a loan to pay for school. He went to the dentist, and dad paid the dental bill.

Sunday, July 29, 2018

Tax Trouble

Uncle Sam wants his money
In re Canney, III, 2018 VT 69 (mem.)

Attorney Canney had some tax trouble. He admitted in Vermont Federal District Court to filing fraudulent individual and corporate tax returns. SCOV "found clear and convincing support for the conclusion that respondent violated the Vermont Rules of Professional Conduct and that he posed a substantial threat of serious harm to the public. His license to practice law was suspended pending final disposition of a disciplinary proceeding."

Attorney Canney submitted an affidavit resigning from the bar. Disciplinary counsel filed an additional statement of facts (in case Attorney Canney ever goes for reinstatement). Attorney Canney didn't respond to the additional facts.

SCOV accepts the resignation and Attorney Canney is disbarred.

Sunday, July 15, 2018

Mixed Signals

You have to pick a door. Any door
is fine. Except the wrong door.
Lillie v. Dept. of Labor, 2018 VT 66

By Andrew Delaney

Have you ever ended up in trouble for doing something you were told to do? I’ve been married a few years now, so I know I have.

Mr. Lillie knows what that’s like. He got burned at work. This isn’t a joke. He worked for a propane company and he actually got burned. He continued to work but at a limited capacity. A few months later, he got fired for an alleged safety violation. Due to his work injury, during this same time period, he was taken out of work by his doctors. While there was some dispute about his worker’s compensation eligibility, he went to the Economic Services Division (ESD) to try to get some financial help. ESD told Mr. Lillie to apply for unemployment if he wanted to receive any benefits. So Mr. Lillie did as he was told. Those of you that have some experience with how unemployment works might be thinking, “Why’s he applying for unemployment if he can’t work? He’s not gonna get it.” That’s right.

The Unemployment Insurance Division calculated “monetary eligibility” based on Mr. Lillie’s wages earned during the immediately previous June-July year. And he qualified under that calculation. This triggered a “benefit year.” (If you’d like to learn more about how a benefit year and eligibility are calculated, here’s a handy-dandy link to a previous post on the issue). However, he wasn't able and available to work due to his work injury and so wasn't able to get unemployment.

We'll See

We're not entirely sure
what is going on here. 
Clark v. Menard, 2018 VT 68

By Elizabeth Kruska

For all our gentle readers unfamiliar with the Vermont Department of Corrections’ phenomenon known as “work camp,” I’ll explain how this works. It’ll be helpful for future reference throughout the course of this summary.

In Vermont we have what’s known as “truth in sentencing” which is that if someone gets a sentence, that’s their sentence. There’s no longer “good time” which is a way to reduce someone’s sentence. There are some places where it’s basically understood that if you get a 1 year sentence you serve 8 months. Vermont is not such a place. Well, subject to some minor exceptions, and work camp is one of those exceptions.

Certain offenders with nonviolent offenses and/or nonviolent records might be allowed to go to work camp. It’s exactly what it sounds like. It’s a part of one (sometimes more than one) correctional facility where sentenced inmates get to work in order to earn “day-for-day” credit toward their sentences. This is arguably a good thing. Inmates who are eligible want to go to work camp and once they’re there, they want to stay. Participants get not only the benefit of credit toward their sentences but also get to spend their days working and being productive. The state benefits because it gets some people out of jail sooner, thus costing less, while having inmates work on certain state projects, also costing less. I once got to see the license plate shop when the women were making plates and signs at the Windsor Farm. It was very cool.

Saturday, July 7, 2018

The Power of Contractual Obligations Compels You!

Well, why wouldn't you press it? 
People's United Bank, NA v. Alana Provencale, Inc., 2018 VT 46

By Thomas M. Kester

You can buy tons of cool stuff at auctions: cop cars, finger traps, and the like, but be careful what you do buy. You don't want to be labeled a “genuine idiot” like Cary Grant. Within a split-second you can buy whatever is on the auction block. But be forewarned: you are now on the financial chopping block too, and hopefully in all the flutter and excitement of bidding you didn’t stretch yourself too thin.

Banks and lending institutions really like it when mortgage holders pay their debts, especially in a predetermined and consecutive nature for many years. What happens if you stop paying and get foreclosed upon? One possibility is that the property goes up for auction and the highest bidder gets to buy the property from the Bank. That’s what happened here but, like with a good martini, there is a little twist added.

Out of seven bidders, Buyer wins the property in question in September 2016. Thereafter, Buyer made the required deposit and signed an auction purchase and sale agreement (“P&S”). The P&S states that Buyer is obligated to purchase the property (pending the court’s confirmation) and the Bank has the “right . . . to request relief from the court in the event buyer fails to pay the balance of the purchase price.” The trial court confirms the sale by order and the confirmation order “names buyer and states that ‘the sale reported is hereby confirmed and title to the lands and premises shall be transferred to’” Buyer and the order also “refers to buyer by name and indicates buyer as the high bidder at the public sale” and also “listed the property’s sale price and confirmed buyer’s obligation to purchase the property.” Everything is going swimmingly and Buyer and Bank schedule the closing for February 10, 2017. Now would be a good time to start shaking up that martini (I like my martinis “dirty as the Hudson river” but you can concoct whatever you want).