Sunday, February 4, 2018

Delay of Game?

Better figure somethin' out soon. 
Adams v. Barr, 2018 VT 12

By Andrew Delaney

The lesson in this case is: “Don’t wait until the last minute.” I suppose, in life, that’s a universally applicable lesson. In this case, for Mr. and Mrs. Adams and their construction company, it’s an expensive lesson as well. And in the spirit of Super Bowl Sunday, we could say, “Don’t let the play clock run out before calling a time-out.”

Barr Law Group filed an arbitration demand against Adams Construction with the American Arbitration Association (the “other” AAA) “claiming that Adams Construction had failed to pay Barr Law Group more than $40,000 in fees for legal services.” Adams Construction filed an answer and counterclaim for $97K. There was discovery, conferences, scheduling, rulings, and yadda, yadda, yadda the case headed to hearing.

But one week before the scheduled three-day hearing, Adams Construction said something like, “Whoa. Hold up. We never should’ve agreed to this arbitration thing. It’s unfair and Barr tricked us into it. We object.” Adams Construction filed an objection to the arbitration and moved to dismiss it. Adams argued, for the first time, that the arbitration provision in the fee agreement was unenforceable. Adams Construction cited legal authority that arbitration provisions are supposed to be fully explained and disclosed. Adams Construction said Barr didn’t do any of that stuff. As to its delay in raising the issue, Adams Construction indicated that it had only recently learned of the legal basis for objection before raising it. 

Sunday, January 28, 2018

Timing Is Everything

Like sands in an hourglass . . .
State v. Scarola, 2017 VT 116

By Elizabeth Kruska

OK, maybe timing isn’t exactly everything, but timing is a big piece of why this particular case got affirmed. Timing is also the reason this case might have burst into a fiery mess of a procedural sideshow, but didn’t because SCOV affirmed.

The underlying facts are horrible, In 2013, Mr. Scarola beat up his wife with a baseball bat, nearly killing her. By some miracle, she survived, and he was charged with aggravated domestic assault and attempted second degree murder. That later got upgraded to attempted aggravated murder. There are lots of news articles about the facts; they need not be fully recounted here.

The case headed toward trial, and in March of 2015, the parties had a pre-trial hearing on some evidentiary issues. After that hearing, the judge called the attorneys in to chambers to inquire if the case was going to go forward to trial, or if there was some sort of plea agreement also being discussed. The judge apparently suggested that 20 years to life seemed like a reasonable sentence, given the situation.

Saturday, January 20, 2018

Needy or Not?

What's in your wallet? 
State v. Kittredge, 2018 VT 6 (mem.)

By Andrew Delaney

Mr. Kittridge got charged with a bunch of crimes, including neglect, manslaughter, and welfare fraud. He requested a public defender and the trial court denied the request at arraignment. Mr. Kittredge was released on a $25K unsecured appearance bond. He reapplied for a public defender and the trial court again denied the request because Mr. Kittredge’s income exceeded the financial guidelines. He moved to reconsider the public-defender denial. Again, the trial court denied the request because Mr. Kittredge’s “income and family size disqualify him from receiving a public defender.”

That brings us to SCOV’s door.

Generally, denial of public-defender services is left to the trial court’s discretion. In this case, however, SCOV considers “whether the trial court conducted the proper analysis in determining whether to appoint counsel.” This is a no-deference analysis.

Who’s on Your Ballot?

Decisions, decisions . . .
Paige v. State, 2017 VT 54

By Eric Fanning

Get ready, SCOV Law readers, 2016 is back . . . with a vengeance!

Appellant H. Brooke Paige is a Vermont voter, and was a candidate in the state’s 2016 presidential Republican primary. Back in December of 2015, when primary season was in full swing, he filed a declaratory judgment action and asked for a temporary restraining order against the State of Vermont, the Secretary of State, and the Attorney General. 

Paige sued to block the inclusion of Senators Marco Rubio and Ted Cruz on the Republican primary ballot on the basis that they were not qualified to run for President of the United States (Paige is playing the you’re-not-a-natural-born-citizen card). His complaint claimed that, by putting unqualified candidates on the ballot, he would be deprived of his 5th and 14th Amendment rights as a citizen, and, as a candidate, he would “suffer the prudential debilities of having to contend with candidates who are not qualified” like competing for signatures, money, media coverage, votes, and all that jazz.

Sunday, January 7, 2018

Location, Location, Location

What's goin' on in that spot? 
In re North East Materials Group LLC, 2016 VT 87

By Andrew Delaney

Sometimes it takes us a little while to get around to cases here at SCOV Law. This is a late-2016 decision, and for some reason it’s never been picked up by any of our writers. But it’s 2018 now, so we need to get 2016 wrapped up.

Location matters. That’s the two-word version of this case. 

This is the second round, but we haven’t gotten to the first one yet either, so we’re starting from scratch here. Briefly, in the first round, a group of neighbors appealed and SCOV reversed because the environmental division has used the wrong legal standard in determining that North East Materials Group LLC (NEMG)’s rock-crushing operation didn’t “constitute a cognizable physical change to the preexisting development.” SCOV also concluded that one of the factual findings in support of the environmental division’s conclusion was “totally whack.” So, the case went back to the environmental division, which on remand again concluded that the rock-crushing operation was exempt from Act 250 as a preexisting development. The neighbors appeal again and the majority goes with the neighbors. Here we go again.

Sunday, December 31, 2017

"A Very Difficult Case"

Yep. That's about the sentiment. 
Knutsen v. Cegalis, 2017 VT 62

By Andrew Delaney

This case has previously been described as “heartbreaking.” This is the fourth published opinion in this case I’m aware of. You can read summaries of the second and third opinions by clicking on the respective links. The first opinion predated this blog.

This time mom is appealing from the trial court’s denial of her motion to modify parental rights and responsibilities. She argues that the trial court’s findings don’t support its conclusions. Specifically, even though the trial court found that mom had shown a real, substantial, and unanticipated change in circumstances, and that dad and stepmom weren’t credible, the court nonetheless chose not to modify parental rights and responsibilities because it reasoned that transferring custody to mom wasn’t in the kiddo’s best interests. SCOV says, more or less, “We guess that’s within the trial court’s discretion, but if dad and stepmom keep up the alienation stuff, then that’s probably going to warrant a change.”

Mom also appeals the trial court’s denial of her motion for attorney’s fees. On that point, SCOV sides with mom, reasoning that she’s “entitled to such fees given father’s egregious and ongoing effort to alienate her from” kiddo, which is what brought all this about.

Sunday, December 10, 2017

Roof not Required

Structure? 
State v. Lampman, 2017 VT 114

By Elizabeth Kruska

Any time I see a last name ending with “-man” I tend to think that person might be some sort of superhero, like Spider-Man or Superman. I don’t know Mr. Lampman, but I immediately envisioned him like this: all dark clothing* with red gloves, and an emblem of an old-timey gas lantern on his chest that has a yellow glow around it. And obviously there’s a cape, because I suspect nobody gets into the superhero business without the promise of a cape.
Superhero Interviewer: “You’ll bring lightness to the world.”
Potential Superhero: “Do I get a cape?”
Superhero Interviewer: “No, sorry, our cape budget is maxed out.”
Potential Superhero: “You know, I have a degree in electrical engineering. I don’t need this nonsense.” *storms out*
(*Anyone able to tell me why superheroes always wear tights? Can’t someone be super in, say, a pair of Levi’s and a hoodie? I’m wearing a hoodie right now with a big outline of the state of Michigan on the front, and I gotta say, it’s comfy and I feel pretty super. Also, as an expatriated Michigander and Wolverine, I am duty bound to add, “Go Blue!”)

Anyway, it appears that Lampman in this case has a completely different superpower, which is stealing building materials from partially constructed structures.

Form Over Substance

You can't ride a bicycle with one
wheel because then it's a unicycle. 
State v. Heffernan, 2017 VT 113

By Elizabeth Kruska

This is what happens when a rule is followed to the letter and ends up having an unfortunately bad effect in the long run.

Mr. Heffernan was charged with simple assault and disorderly conduct in 2015 after he and another man got into a sidewalk fight in Burlington. Mr. Heffnernan worked (maybe still works, I don’t know) at Nectar’s. He wears glasses and usually rides his bike to work. The complainant in the case often went to Nectar’s. A bouncer recognized them both.

The bouncer’s version of the facts is that at some point on the night in question, he saw Mr. Heffernan and the complainant having a “close conversation” but he couldn’t really hear what they were saying. A fight started, but he couldn’t see exactly how. A patron at Esox, another bar nearby, also saw the fight and had a similar story.

Sunday, December 3, 2017

Take It or Leave It

Because when there’s no applicable photo,
we go with a photo of a cute puppy.
State v. Love, 2017 VT 66

By Elizabeth Kruska

Here’s a new twist on an old theme: probation. For a little while there SCOV was deciding a probation-related case almost every other day. This case answers a probation-related question that does come up from time to time but isn’t as common as some of the other probation issues we frequently see.

When we’re talking about probation, there are a couple different ways to get there in Vermont. Someone could be sentenced to a suspended sentence and supervised on probation with a requirement to complete certain conditions for a period of time. Often, it’s a fixed period of time, sometimes it’s an indefinite period. Let’s suppose someone gets a sentence of 6-12 months, all suspended, and a probation term of 2 years. That means they’re on probation for 2 years, and if they screw up on probation, they could have to serve that 6-12 month sentence in jail. If the person does well, or with permission of the court, they can be discharged from probation supervision earlier than their ordered term.

The other way someone ends up on probation is with a deferred sentence. Deferred sentences operate a little differently. A person is adjudicated guilty, but isn’t sentenced just yet. Sentencing gets deferred for a certain period of time. During that period of time, he or she could be supervised on probation, and have to follow certain probation conditions. When the person reaches the end of the deferred sentence period, if they’ve complied with their conditions, the conviction gets expunged from the person’s record and the matter is treated as if it didn’t happen. The other side of the sword, though, is that if the person violates probation, since they’ve already been adjudicated guilty, they just get sentenced at that point and the conviction stays on their record.

Sunday, November 26, 2017

Bail, or Not?

Hay! That’s the wrong kind of bail!
State v. Orost, 2017 VT 110

By Elizabeth Kruska

This is a bail appeal across four different dockets. Two get reversed, and that’s really only just so that bail can be imposed in those two particular cases.

Right-o. So, Mr. Orost was charged with a whole bunch of offenses. On October 16, 2017, he was arraigned on Docket 357 (the docket numbers are helpful because there are many of them). Three of the seven counts were punishable by life imprisonment. Two were counts of sexual assault of a child under the age of 18 entrusted to defendant’s care, and one count of aggravated sexual assault.

I already see where this is going.