Friday, December 30, 2011

Are You My Attorney?

Handverger v. City of Winooski, 2011 VT 134.

Round two in the dispute between the City of Winooski and its former City Manager came out two weeks after the first

Where the first case focused on the process due to plaintiff for his termination, the second focuses on the relationship between plaintiff and the City’s Attorney.

“You have the right to remain silent . . .”

State v. Robitaille, 2011 VT 135

Arrested?  —Just shut up. 


Any criminal-defense attorney will tell you—the police are not in the business of helping defendants.  Do not talk to them.  They are not your friends, and they are not there to help you.   They are there to investigate a case, arrest you, and obtain a confession or evidence of guilt if possible.  So if you are in custody, bite your tongue and wait for your attorney.

Team America

SEC America, LLC v. Marine Electric Systems, Inc., 2011 VT 125 (mem.).

What do you get when you cross a first-year contracts exam with international, high-tech weapons defense?  Here it goes…

In 2007, EMW, an Israeli company owned by a gentleman named Alon Wallach, created a device called the MILJAM 350.  This “jammer” disrupts the remote detonation of improvised explosive devices or IEDs—and it makes a great stocking stuffer!  EMW then entered into talks with NATO to sell its MILJAM 350 jammers to NATO for its forces to use in Afghanistan.

You Can’t Go Home Again

Wilson v. Wilson, 2011 VT 133 (mem.).

Let us not waste time, good reader, and cut to the chase.  Today’s case illustrates a basic principle of family law: property distributions are forever.

Wrong Place, Right Time

Kennery v. State of Vermont, 2011 VT 121.

Liability is a curious thing.  In our society, we have long had the right to sue each other for the injuries that we inflict on one another.  Despite, the propaganda, liability serves an important function.  Each day that we leave our house, we move under an obligation to other people.  We must behave in a careful, cautious, and reasonable manner.  It is what stops ideas like this from becoming too widespread.

Friday, December 16, 2011

Too Clever by Half

In re Morin, 2011 VT 132 (mem.).

It is possible to be too clever, especially when that cleverness involves procedural maneuvers.  In this case a criminal Defendant tried some clever maneuvering and ended up right back where he started.

Tuesday, December 13, 2011

The Branch Will Not Break

Handverger v. City of Winooski, 2011 VT 130 (mem.).

Not every illness has a cure.  Not every wrong receives a right.  All dogs do not get their day. 

In the law, we are deceived to believe that if we fight hard enough, file quickly, and raise enough evidence that a hearing concerning our clients’ rights will follow in due course.  If the hearing goes badly, we file an appeal, brief the arguments and aim for a second shot.  But as the SCOV has recently instructed, a brief, flawed hearing may be the only process due.  With today’s case, the SCOV goes a little further and suggests that even this is a privilege, which may be abridged without consequence.

Friday, December 9, 2011

Lack of Intervention

By Jeffrey Thomson

State v. Carrolton, 2011 VT 131

It is easy to assume that the criminal justice system makes easy work out of punishing criminals when there is no question of guilt or innocence.  If someone pleads guilty to a crime, then the prosecutors charge them with the crime, and the trial court sets the punishment. 

Easy as pie, right? 

Not quite.

Eats, Shoots and Hoards

Lay v. Pettengill, 2011 VT 127

Like so many people on reality TV these days, Plaintiff was a pack rat.  Unlike most hoarders, Plaintiff was a state trooper and over the course of three years, he gathered twenty-seven items from various criminal investigations and placed them in his desk.  Eventually, the fellows over in Internal Affairs caught on to Trooper Lay’s hoarding habit, and once they suspected something was amiss, they acted swiftly and decisively.  Without warning they suspended Plaintiff, revoked his access to the police barracks, and took away his badge, identification, gun, police cruiser, and keys. 

Friday, December 2, 2011

International Crisis

In re RW and NW, 2011 VT 124.

This case is a mess that does not really resolve itself.  Like a couple of heavyweights the majority opinion and the concurrence work over their opponents, land a few solid blows, then go to their corners to wait for the decision.  The end result is less a triumph of reasoning than the exhaustion of good options as each one proves to be unworkable in the general scheme.

The Importance of Being CC’d

By Nicole Killoran

Colson v. Town of Randolph, 2011 VT 129 (mem.).

Today’s case is a complex story composed of a series of unfortunate mistakes.  The various threads in this tale consist of two state agencies, two liens, a fireman, a municipal insurance provider, some unpaid child support, a frustrated and unpaid attorney, and the proceeds from a workers compensation injury claim settlement.  What could possibly weave these together, you may ask?  As the SCOV puts it: “avoidable error and its consequences.”

The Fentanyl Fiasco

Puppolo v. Donovan & O’Connor, LLC, 2011 VT 119 (mem.).

Be careful when you turn down a case. 

Dear Aunt Eva died from heart failure.  She was eighty-three years old and a patient in a nursing home.  Eva’s niece arrived minutes after Eva died.  The niece saw Fentanyl patches on Aunt Eva and concluded that Aunt Eva died due to a Fentanyl overdose.  Eva’s doctor claimed that the Fentanyl was for severe-pressure-ulcer pain, but Eva’s niece knew better. 

The Good Son

By Michael Tarrant

Knutsen v. Cegalis, 2011 VT 128 (mem.).

Of all the joys that bringing a child into the world entails, deciding which parent should retain primary custody after a separation is surely not one of them. In this unfortunate case, Mother and Father could not agree as to who would retain primary custody of their son after separating shortly after their son’s birth, and thus turned to the court system for help.

Friday, November 25, 2011

Luck of the Appeal

State v. Amidon, 2011 VT 126 (mem.).

Today’s case is a minor footnote due to an issue of timing. 

Defendant was charged with two counts of home improvement fraud, one count of false pretenses, and one count of grand larceny.  At trial, Defendant was convicted by a jury on one count of home improvement fraud.  He was found not guilty on the other count of home improvement fraud and grand larceny.  The charge of false pretenses was dismissed by the State after the jury deadlocked without reaching a verdict.

Thursday, November 17, 2011

The Great SCOV Quiz—Part 3

SCOV Law is once again pleased to present the work of Paul GilliesVermont lawyer and historian.  Paul has recently begun work on his big project: A History of the Vermont Supreme Court.  To kick off this project he designed a 75-question quiz that he deems "impossible."  Today brings the final installment.  See here for the introduction and Part One (Questions 1–25) and here for Part Two (Questions 26–75).  Answers to today's questions can be found at the bottom of the post.

SCOV Quiz Part III (Questions 51–75)

51.       Which judge wrote the town history of Manchester?[1]

Friday, November 11, 2011

Listers, Mount Up!

By Michael Tarrant

Garbitelli v. Town of Brookfield, 2011 VT 122

What’s the point of having one’s cake if you can’t eat it too?  Decorative cakes are lovely, but cake is for eating.  I, for one, do not understand this choice between having the cake or eating it.  Apparently, Taxpayer, our appellant in this case, doesn’t either.

The House that Jack Inspected

Glassford v. BrickKicker and GDM Home Services, Inc., 2011 VT 118.

Let us speak honestly as one member of society to another.  Unless your name ends with the letters Rockefeller or Buffett, the biggest single investment you will make in your life is the purchase of a house.  Sure, we may accumulate massive 401ks or stock portfolios that would make Calvin Coolidge openly weep, but such things accrue over time and require careful and perpetual stewardship that we often pawn-off to a broker or financial planner. 

Scent of Suspicion

By Nicole Killoran

State v. Therrien, 2011 VT 120

After imbibing “one” beer after a hard day’s work, the Defendant in today’s case went out for a late night drive in a vehicle with a broken taillight.  As so often happens, a police officer found this reason enough to pull Defendant over to investigate.  When Defendant rolled down his window, the officer noticed Defendant’s “watery eyes,” a strong odor of alcohol, and an apparently empty beer bottle behind the passenger seat.  Defendant admitted that he had consumed a single beer after leaving work that day.

Thursday, November 10, 2011

The Great SCOV Quiz—Part 2

SCOV Law is once again pleased to present the work of Paul Gillies, Vermont lawyer and historian.  Paul has recently begun work on his big project: A History of the Vermont Supreme Court.  To kick off this project he designed a 75-question quiz that he deems "impossible."  Today brings the second of three installments.  See here for the introduction and Part One (Questions 1–25).  Answers to today's questions can be found at the bottom of the post.

SCOV Quiz Part II (Questions 26–50)

Till Death Do Us Part

BBy Cara Cookson

Billings v. Billings, 2011 VT 116

Can you hear the buzz in Vermont lawyer-land?  Could it be?  Has it finally happened?  Yes, dear family law practitioners and estate planners, it’s true!  The SCOV has finally cited George Eliot and her 1871 epic, Middlemarch!

In quoting Eliot’s Dorothea Brooke, SCOV rules that one’s inheritance from mom and pop is such a sure thing that the family court can consider it when dividing the proverbial pot ‘o’ divorce property.  After all if you get cleaned out in divorce, your parents probably will feel bad enough to keep you named in the will that landed you broke in the first place.  

Am I right?

Reasonable Restitution Reasoning Required: Reproved, Reversed, and Remanded

State v. Kenvin, 2011 VT 123

Restitution orders have to be based on somewhat reasoned application of the applicable statutes.  Otherwise, the SCOV gets annoyed.   

This case stems from a September 2008 accident at an intersection.  Defendant was traveling north when he made a left-hand turn.  A motorcyclist was traveling south and could not avoid Defendant’s truck.  The motorcycle collided with the truck; the cyclist was knocked into the air and later died from the resulting injuries.

Thursday, November 3, 2011

The Great SCOV Quiz—Part I.

SCOV Law is once again pleased to present the work of Paul Gillies, Vermont lawyer and historian.  Paul has recently begun work on his big project: A History of the Vermont Supreme Court.  To kick off this project he designed a 75-question quiz that he deems "impossible."  For the next three weeks, SCOV Law will be publishing this quiz in segments.  Answers can be found at the bottom of the post.


The following 25 questions are designed to skunk.  If you know the answers, good, but count yourself in the minority as many of these facts and figures have slumped off into the corners of our state's history.  Vermont has always been a colorful state and not simply during foliage season.  The Vermont judiciary like any other segment of Vermont has its share of characters, rogues, and heroes.  Consider the following 25 questions and those that will follow in the coming weeks to be appetizersmorsels designed to whet and encourage rather than satiate the appetite.

Tuesday, November 1, 2011

Young Lawyer's Mixer

The Young Lawyer’s Division of the VBA is hosting its third annual FALL MIXER!  On Wednesday, NOVEMBER 2, 2011 in Brattleboro, Vermont at the fabulous, newly renovated Marina (28 Spring Tree Road, Brattleboro, Vermont  05301; 802-257-7563)

Festivities are scheduled to begin at 5:15 p.m., and like last year, fabulous hors d’oeuvres will be served.

There is no age limit nor are you barred from attending if you have practiced for more years than you will readily admit.

Saturday, October 29, 2011

What Am I Missing?

In re SP Land Co., LLC, Act 250 Land Use Permit Amendment, 2011 VT 104.

Today’s case is an appeal from an Act 250 Amendment and asks the head-stumping question, Can you seek an administrative amendment when the underlying permit is not there?  The answer is a closer call than you might think.

Making a Capital Case Out of Things

Towslee v. Callanan, 2011 VT 106 (mem.).

Here is what I think happened in today’s case.  The parties briefed and argued the case in the fall of 2010.  The justices then took a vote on the outcome of the case.  A strong voice emerged and a majority was constituted.  One justice was assigned to draft the opinion and work began.  During this time one or more of the justices started having second thoughts.  Maybe those thoughts were there the day of the conference.  Maybe they began to emerge slowly as drafts of the opinion started to circulate between chambers.  However it occurred, the doubts built up steam, and before everyone knew it, three justices were aligned on the other side of the opinion, and the original majority was now the dissent. 

Friday, October 28, 2011

A Simple Point of View

DeSantis v. Pegues, 2011 VT 114

Our perceptions of a scene often depend in large part upon the perception of the people populating the story.  Think for a moment about the story of a mugger.  Imagine Robert De Niro playing the mugger.  Now think of Owen Wilson playing the same criminal.  Now think of Will Ferrell in the role. 

Chances are that you saw three very different muggers and very different stories.  No doubt it went from a brooding, scary drama, to a whimsical romance, to an absurdist comedy.  Your perception of the stakes also shifted from serious to farce. 

Stay for Awhile

White and Searles v. Harris, 2011 VT 115 (mem.)

Here is the game for attorneys representing plaintiffs and defendants in a personal injury case.  Plaintiffs want to sue as many defendants with as deep pockets as possible.  Defendants want to exit the case as soon as they can.  Both sides are held by the rules of the larger game, which require plaintiffs to have a legitimate basis for bringing a defendant into a lawsuit and defendants to stay in so long as there is such a claim pending against them.  The reasons behind each party’s position should be obvious, but at the forefront, a defendant is trying to terminate or limit any potential liability while plaintiff is trying to keep the defendant in the game for the purposes of either hooking them for a portion of the settlement or judgment.  For proof of any of this, one need not look any further than the full caption and the substance of today’s case. 

Deemed Denied

In re Appeal of Morrill House LLC and Smith Variance, 2011 VT 117 (mem.)

Today’s decision, if it had been issued by K-Tel could also be called Deemed Approved’s Greatest Hits.  It is a minor compendium, but an important summary for an area of law that confuses most practitioners and causes fear in citizen boards across the state.

Improper Search Terms

Rutanhira v. Rutanhira, 2011 VT 113

Some parents freak out when their children leave their sight.  These so-called helicopter parents hover around their children whether they are at home, on the playground, or hanging out with other kids.  It is an extreme outcropping of a common desire that parents have to keep their children safe.  Today’s case concerns what happens when parents disagree about what is safe.

Thursday, October 27, 2011

The Suspicious Subdivision Blues

Pease v. Windsor Dev. & Rev. Bd., 2011 VT 103 (mem.)

The reason they teach so much procedure in law school is so that when you get out, you at least have a shot at understanding a case like this.  In this case, the SCOV says, more or less, “Look—you got what you asked for.  So what’s the problem?”    

Wednesday, October 26, 2011

Take Me Away

Chickanosky v. Chickanosky, 2011 VT 110.

Family division cases, particularly contested family division cases, are rarely pleasant to read.  The reader is forced to confront a family in crisis that is devolving into different states of dysfunction.  The one who usually feels the brunt of this is the child who is treated as a human shuttlecock careening off of one parent to the other.  The problem is usually not a lack of love.  Both parents to continue litigation must have love for the child close to their respective hearts.  It is that each parent’s love and affection is incompatible with the other’s.

Dad Always Liked You Best

In re Estates of Allen, 2011 VT 95.

Sometimes the practice of law brings you into situations where the family dynamic at play makes you glad that you are not the psychiatrist who has to untangle all of the personal issues driving the parties.  As attorney, you just have to drive the car and make your clients’ action go forward.  Forget about the father issues, and damn the torpedoes!

Friday, October 21, 2011

The Price at the Pump

Bradford Oil Company, Inc. v. Stonington Insurance Company, 2011 VT 108

The Anglo-French billionaire Sir James Goldsmith once said, “[i]f you pay peanuts, you get monkeys.”  The SCOV used a few more paragraphs and a bit more law to tell the Agency of Natural Resources—and by extension, the plaintiff-passive-polluter—basically the same thing in today’s case of how to allocate damages for a hazardous waste clean-up.  The SCOV concluded that the defendant-insurance company is only responsible for paying a small fraction of the remediation costs represented by the sliver of time during which the plaintiff-polluter was buying coverage.

Tuesday, October 18, 2011

Here's to You, Justice Robinson

News today out of Montpelier is that Governor Shumlin has appointed Beth Robinson to be the next Associate Justice of the Vermont Supreme Court.

Justice Robinson brings 18 years of practice experience with her to the bench, which include a large number of cases representing parties in workers' compensation cases, students and families in education cases, and, oh yeah, one little case about 12 years ago involving a town clerk and some licensure issue.  

Did anyone ever see what happened to that one on remand?

Congratulations to the new justice who, in the humble opinion of this blog, represents an excellent and solid addition to the SCOV.  As summarizers and commentators, we look forward to see where you will be taking things.

Monday, October 10, 2011

No Coverage for Dr. Feelgood

ProSelect Ins. Co. v. Levy, 2011 VT 109 (mem.).

Insurance is a business.  As part of its business model, insurance companies are in the regular practice of excluding intentional and obvious sources of damages.  There is, for example, no general liability policy available to a serial killer.  If you are in the business of purposefully killing other people, insurance companies do not want to talk to you and will not insure against your inevitable losses. 

Double Secret Indemnity

State v. Wetter, 2011 VT 111.

There are times when art imitates life, but there are also times when life, in its messy, awkward, sprawling nature seems to imitate art.  And then there are cases like today that reads like a second-rate Lifetime movie as imagined by the Cohen brothers.

Friday, October 7, 2011

Remembrance of Voluntary Consent Past

By Nicole Killoran

State v. Weisler & State v. King, 2011 VT 96

Today’s opinion, a lengthy and rare double-header, grants us a brief glimpse into a concept with enormous importance for appellate courts: the standard of review.  While the concept may seem esoteric to those outside the cloistered world of appeals, it is in fact grounded in human behavior.  Due to the dual nature of appellate review, and the need for appellate sensitivity when reviewing lower court decisions, the standard of review is the threshold for consideration, the lens through which the lower court’s findings and conclusions will be scrutinized.  Today’s case considers what standard of review should apply to trial court decisions regarding whether consent to a police search was truly voluntary.

Don’t Text Us. We’ll Text You

Porter v. AT&T Mobility, LLC, 2011 VT 112 (mem.).

In these times of protest against corporations, what better case could be made than an individual's triumph over the forces of organized business?  Let us say Hurrah for common man (or woman) who sticks to his (her) guns and beats back an action by large, multi-national company.  Moreover, let us fete such triumph when it comes on the incorporated entity's home turf: a lawsuit involving complex consumer contracts.  Or better yet, chalk today’s case up to corporate overreach and a simple twist of evidence that let the underdog prevail.

All Your Container Are Belong to Us

State v. Lamonda, 2011 VT 101 (mem.).

Oh!  To be young, carefree, and easily intimidated by police officers during a traffic stop. 

Defendant in today’s case was pulled over by police for driving too slow.  Upon exiting the car, the officer observed that Defendant was a little sluggish and a bit slow on the draw.  Officer asked Defendant if she had been doing any drugs, and Defendant admitted that she had been smoking marijuana.  Officer then asked what he would find if he searched Defendant’s car.  Her answer was probably “a roach,” which qualifies as an honest but not particularly self-preserving response. 

Make It So

State v. F.M., 2011 VT 100 (mem.)

Although today’s case is remanded to the trial court, the SCOV breaks the fourth wall and notes that it actually directed toward the court administrator.  At issue is a charge against Defendant that was subject to expungement upon Defendant's successful completion of probation. 

Sleight of Coverage

McGoff v. Acadia Insurance Co., 2011 VT 102 (mem.).

Keep your eye on the ball with this case. 

Plaintiff is a Barre resident.  At the time of his accident, he was employed as a regional sales manager for a chain of gas stations headquartered in Massachusetts.  His job required him to regularly visit stores throughout Vermont and New Hampshire, and for his benefit his employer had furnished him with a company car, which Plaintiff kept at his home when he was not on the road. 

In June 2004, coming through Richmond, Vermont, Plaintiff was clobbered by another car and sustained serious injuries.  Plaintiff filed a claim against the driver and the driver’s car insurance.

Tuesday, October 4, 2011

Drinking, and Driving, and Lies, OH MY!

By Michael Tarrant

State v. Charland, 2011 VT 107

There aren’t many things out there that make getting convicted and sentenced for committing a crime worse.  But when lies are told at trial by someone other than you that end up “enhancing” your sentence . . . well, that might just be one of those few things.  

Cover Me Part II: The Attorney’s Fees Special Edition

Southwick v. City of Rutland, 2011 VT 105

If this case sounds familiar, that’s because it is.  We wrote about it a few months back.  That time, the issue was whether an indemnification provision was applicable to require a swim club to indemnify the City for an incident that occurred at a club meet held at the City’s pool.  This time it’s whether the attorney’s fees portion of the same indemnification provision applies to indemnity and third-party claims.  The SCOV holds that it does not.  

Monday, September 19, 2011

A Vermont Common Law

Editor's Note: Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.  Common law is the term used to describe legal precedent that comes strictly from case law and prior decisions.   Today Paul presents us with the case that first recognized that Vermont had established its own common law, which marked both a legal and historic milestone for the relatively new state..

Matthews v. Hall, 1 Vt. 316 (1828)

            Vermont adopted the common law, “as it is generally practiced and understood in the New England states,” in 1778, by an act of legislation.  In 1787, under the leadership of Nathaniel Chipman, the General Assembly enacted “so much of the common law of England as is not repugnant to the Constitution or to any act of the Legislature of this State.”  The act went to require Vermont courts to be guided by all English statutes passed before October 1, 1760 in interpreting that common law. 

Friday, September 16, 2011

Return to Dogpatch

By Nicole Killoran

State v. Thompson, 2011 VT 98 (mem.).

Today’s case in part stems from our sister state’s refusal to allow a known child molester back into its neighborhoods.  Defendant Thompson, a Massachusetts resident, engaged in some inappropriate touching of his cousin’s buttocks (is there any other kind amongst cousins in this post-Lil’ Abner world?) while on a ski trip in Vermont.  In order to downgrade the charges from felony to misdemeanor, Defendant entered into a plea agreement with the State.  At the change-of-plea hearing, the parties agreed that Defendant could reside in Massachusetts during his probation, so long as Massachusetts probation officials agreed.  Defendant was sentenced to one-to-twelve months, all suspended, and placed on probation with various conditions, some specific to his status as a sex offender. 

The Fellowship of the Twelve: One Challenge to Rule Them All

By Michael Tarrant
State v. Bol, 2011 VT 99

Ah, the fun of jury draw day.  The sights!  The smells!  The Court Carnies!  It is a most festive time indeed, where certain fortunate members of the community lucky enough to have received their notice of jury duty joyfully file into the courtroom—each one full of hope and anticipation that the lawyers will pick them to serve.  Unfortunately for wannabe jurors, the journey to joining the Fellowship of the Twelve is fraught with peremptory peril.  Lawyers on each side can each eliminate up to six of them on nothing more than a hunch.  As the Eagles would say, “No reasons asked.  No reasons told.” 

Well, that is unless you’re cut solely for your race.

Thursday, September 8, 2011

Update on Status and Farewell to Two Pillars of the Judicial Community

Greetings and Salutations Dear Reader(s)!

If you have been following our blog in the past few weeks, you should notice that we have come a long way to catch up with the SCOV's very productive output this summer.  As of today, our humble blog has summarized all of the Vermont Supreme Court's opinions and published entry orders since July 1, 2010. This is quite an achievement and one that I think has been far more intensive than any of us who contribute to the blog realized when we started this project, nearly a year ago.  Thanks go out to all of you reading and for the great feedback and support you have given us over the past year both on-line and in-person.

We would also like to take a moment to congratulate and fete two giants of the Vermont judicial community who have stepped down from office this past week to begin what we hope will be an exciting new phase in their lives.

Associate Justice Denise Johnson is not only the first female member of the Vermont Supreme Court, but she has throughout her lengthy tenure been one of the Court's jurisprudence heavyweights, who brought a philosophy and view of the law that has had a large role in defining the direct of Vermont law for the past three decades.

Anyone who has been on the receiving end of her line of questioning at oral argument knows first hand the type of intellectual acumen Justice Johnson brought to the bench.  Her replacement has large shoes to fill and a high bar to meet to equal these contributions.

Environmental Court Judge Merideth Wright also retired this past week after a long and storied career.  Judge Wright over the past twenty-plus years worked tirelessly to create, fill, and establish the Environmental Court system as a formal, judicial process over what had always been a notoriously difficult and diverse area of law.

Her legacy is an entire division of the judiciary, not to mention a long trail of decisions and rulings, that have, in large part, shaped and defined the process for land use permitting, process, and enforcement that all of us follow in this state.  Judge Wright's savy and fortitude created a court that while subject to criticism has done more to normalize and professionalize the law of land use than nearly any other action outside of Act 250.

Congratulations to both and consider---just consider---contributing to SCOV Law now that you are looking at more free time in your schedule!

You’re Ouster Here

Whippie v. O’Connor, 2011 VT 97 (mem.).

Marriage brings many benefits to the couples that take the plunge.  Some of these benefits are obvious, but many are not.  One of the biggest benefits is that marriage requires the parties to be fair to each other when they divorce or split up.  Family law is different from civil law because family relationships are different from friendships, business partnerships, and nearly every other relationship we form in our lives. 

An Incidental Kidnapping

State v. Jones, Jr., 2011 VT 90 (mem.).

From the Truman Capote files comes a story of home invasion, violence, and kidnapping.  To the benefit of everyone, though, the victims in today’s case suffered a much more mild fate than Kansas’ Clutters. 

Geologic Litigation

Bostock v. City of Burlington, 2011 VT 89 (mem.).

The point that Charles Dickens drove home in Bleak House to the point of absurdity was this: litigation can last forever and consume everyone involved.  On this first point, let me submit today’s case as Exhibit A of a decades-in-the-making litigation.

Battle Beyond the Experts

Houle v. Ethan Allen, Inc., 2011 VT 62 (mem.).

Workers’ Compensation is to tort law as fat-free vanilla frozen yogurt is to triple chocolate mocha caramel fudge ripple ice cream. 

Workers’ Compensation is the great societal compromise.  Employers insure workers for injuries and do not ask too many questions about why or how it happened, and workers forgo their right to sue employers for dangerous, negligent, or mildly unsafe conditions.  But a good dispute is not hard to find.  Workers’ Compensation cases still go to litigation, but they tend to revolve around their own universe of issues, such as whether a given injury was work related or just part of the body’s natural breaking down before our eventual and mutual deaths. 

Taking Out the Garbage

State v. Boglioli, 2011 VT 60 (mem.).

Okay readers, here is your free criminal law tip of the day!  When you have been bullied by your neighbor for several years to the point where you fear for your safety, you still should not carry a pistol with you when you take out the garbage. 

Short Cuts

Nordlund v. Van Nostrand, 2011 VT 79.

Land use law—that is the law behind zoning, act 250, and most building permits—gets a bad rep.  For developers any regulation is a bad thing and the wails from a builder who is forced to attend multiple DRB hearings only to have his plans modified . . . well, it is enough to break your heart.  Environmentalists have the same complaint from the opposite end of the spectrum.  “They don’t enforce ‘em like they used to.”

To the Victor, the Attorney’s Fees (Sometimes)

By Nicole Killoran

McNally v. Dep’t of PATH, 2011 VT 93 (mem.).

Remember our coverage of the gripping story of the “snow-shoveling incident” that came out last Fall?  No?  In case you’ve forgotten, the SCOV remanded a workers’ compensation decision to the Labor Commissioner, after chiding the Commissioner for making inadequate findings and conclusions, and for misapplying the law.  Today’s case is the second iteration of this controversy and considers whether Claimant McNally may recover costs and attorney’s fees for prevailing in her appeal.

Friday, September 2, 2011

To PBT or not to PBT? That is the Question

State v. Kinney, 2011 VT 74

A jury convicted Mr. Kinney of his third “drivin’-while-imbibin’” charge as well as attempting to elude a police officer.  He appealed, arguing: (1) that the trial court erred in admitting his refusal to take a preliminary breath test (PBT); (2) that during closing argument, the prosecutor interjected his personal opinion and commented on Mr. Kinney’s failure to testify; and (3) that the evidence was insufficient to convict.  The SCOV affirmed.

Friday, August 26, 2011

Forbidden Love

In re Margaret Strouse, Esq., 2011 VT 77

 Ah the power of love!  Today’s case illustrates one of the downsides to practicing in a small state.  In early February of 2008, Attorney began dating a man she had met at her gym.  Several weeks into the romance, while looking over the client list at the Burlington law firm where she worked, she discovered that her firm represented the soon-to-be ex-wife of her beau in the pending divorce action. 

Toxic Trouble

Blanchard v. Goodyear Tire & Rubber, Co., 2011 VT 85.

Plaintiff in today’s case suffers from a rare form on non-Hodgkin’s lymphoma, a cancer that has attacked his central nervous system.  Plaintiff blames his condition on exposure to the known carcinogen benzene, which possibly leaked from Defendant’s plant in Windsor, across the gully, and into the ball field where Plaintiff spent most of the waking hours of his youth.

The Benefit of Veterans

Cote v. Cote, 2011 VT 92.

Despite the length of the SCOV’s opinion this is a one-trick pony.  Husband and wife divorce.  Husband is ordered to pay wife $2000 a month in support.  Husband fails to make payment.  Wife cannot support herself and bank begins to foreclose on her house.  Wife files to enforce the order and to garnish husband’s income and meets a federal road block.

Home Away from Home

Iannarone v. Limoggio, 2011 VT 91.

To say that divorce is a difficult process is misleading.  Divorce is the rending of a societal unit into its original, basic components.  It is a proposition fraught with peril given the joint assets and minors that the union has produced.  It is a math equation in which the elements do not reduce to the original sum of the parts. 

Thursday, August 25, 2011

Entirely Out of the Question

RBS Citizens, N.A. v. Ouhrabka, 2011 VT 86.

As a brief primer for today’s opinion, it is important to know how people do and do not own property as a group of two or more.  For most groups who purchase a house or property together, they own it in a manner known as “tenants in common.”  That means they each own a separate share of the property that is in and of itself an undivided right to occupy and possess the property as a whole.  What does that mean?  It means that contrary to I Love Lucy, tenants in common lack the legal right to divide the house in half with tape. 

Down the Drain

Cheney v. City of Montpelier, 2011 VT 80 (mem.).

In Vermont any claim of damages under $5000 can be brought to small claims court where the process allows parties to quickly and efficiently litigate their issues.  While many of these cases involve collection matters or minor disputes, the court is open to larger, more complicated claims.  As today’s case illustrates, the average small claims court case can raise all kinds of sophisticated questions of liability and causation.

Breaking Away

Blue v. Dept. of Labor, 2011 VT 84

One of the great lessons that we have yet to learn from academia is the benefit of a sabbatical.  Who among us would not benefit by taking a break from our jobs and exploring something else for awhile.  Wouldn’t we all be more productive if we could take a season to explore something else before we went back to the widget factory or the litigation production studio we call home?  Unfortunately, for most this is not an option.  Mortgages, children who need to eat on a daily basis, and account depleting devotions to collecting back issues of Carl Barks’ 1950s work on the Donald Duck comic series leave us with precious little savings  Or maybe I am speaking for myself. 

Permits of Walmart

In re JLD Properties of St. Albans, LLC, 2011 VT 87

The best way to think about today’s case is to consider it a Rorschach ink blot.  What you see probably says more about your views on development and conservation in Vermont and the process that has evolved to regulate and control it, then it does about the specific project, a long in the works strip mall that almost anywhere else in the United States would have been erected a dozen years ago.

Nobody Has the Right

State v. Herrick, 2011 VT 94.

There is an old joke about the futility of bringing a knife to a gun-fight, but the same might be said about bringing a knife to a meeting in a public place called by the husband of the woman with whom you are currently enjoying relations. 

Monday, August 15, 2011

Dropping the Boom on Drunk Driving

By Jeffrey Thomson

State v. Smith, 2011 VT 83

The Vermont State House has made some very interesting exceptions to what constitutes a “motor vehicle” under Vermont’s DUI laws.  These exceptions include farm tractors (drinking while farming is not a crime), snowmobiles (it’s all in fun, right?), and highway building equipment (we’ll look the other way as long as we get these dang roads fixed).  However, the statutes fail to say anything about boom lifts—those big machines that you see on construction sites with a single arm attached to a large basket on the front. 

Wednesday, August 10, 2011

Family Trust

Estate of Nancy Alden v. Alden, 2011 VT 64

Oh what a tangled web we weave for the SCOV to unravel.  Today’s case is a fascinating take on the old story of kids versus second mom.  As with most variations on this theme, this case plays out against the trust dad created either to ensure a fair and equitable distribution of his wealth or to have a few post-mortem chuckles at the expense of his family. 

Something to Build on

Trombley Plumbing & Heating v. Quinn, 2011 VT 70 (mem.)

Plumber is hired by Owners to install heating and hot water systems in Owner’s vacation home.  After final walk through, Plumber sends an invoice to Owners for the final $7,000.  Owners refuse to pay and cite several defects including poor workmanships, non-functioning systems, and incomplete work as the basis for withholding.  Over the following year, Owners experience several problems with the system and expend substantial additional money to correct problems.

Stir Crazy

In re Ronald Combs, 2011 VT 75 (mem.)

Today’s case comes from the narrow category known as post conviction review.  Commonly referred to as a PCR petition or just PCR, the process is the state equivalent of Habeas Corpus.  It is the second level of scrutiny that defendants in the criminal justice system are entitled to receive to protect their rights and to ensure the process is working properly.  PCR cases are procedural reviews that look not necessarily to ensure that the innocent stay out, the guilty stay in, but that the system retains some safeguards to accurately tell one from the other. 

Foreclosing Options

U.S. Bank N. A. v. Kimball, 2011 VT 81

There are two competing narratives dominating the foreclosure epidemic of the past three years.  For banks and mortgage security holders, the story is one of lost revenue on an unprecedented scale.  Promises to pay that are thrown to the wind, which force honest and humble banks to scramble and fight in an unfriendly housing market for even pennies on the dollar.

For homeowners, it is a bureaucratic nightmare of dark alleys and dead ends where it is difficult to figure out who you are working with, let alone to negotiate with anyone holding real power.  It is a situation where everyday the loss of your home, your savings, and your equity looms large.  It is a nightmare world where options float away as soon as they emerge and hope looks thin and ragged.

Can You Keep a Secret?

In re Search Warrants, 2011 VT 88 (mem.)

Let us begin by not ducking the identity of the putative victims in this case.  William and Lorraine Currier disappeared from the house on June 8, 2011. As of this date, no trace of them has been found, at least as far as the public knows.   Their families remain distraught.   And the community remains sympathetic and insatiably curious to the fates of this benign and friendly couple who has suddenly vanished. The only leads appear to be a series of search warrants that the Essex police have executed against individuals and properties in the area.  The press and members of the general public have sought access to these records in the search for some answers.  

Just the Fax

Crocker v. Crocker, 2011 VT 82 (mem.)

From the attorney nightmare file comes this chilling tale.  Final judgment at the trial court in this case was filed on May 13, 2011.  Appellant had 30 days to file a notice of appeal with the SCOV.  On June 13, 2011—the thirtieth day—Appellant faxes the Court a copy of the notice of appeal.  The original arrives one day later.

Tuesday, August 9, 2011

Family Recipes (for Disaster)

By Michael Tarrant

Hazlett v. Toomin, 2011 VT 73 (mem.)

This is a child custody battle; or, perhaps better stated, a child custody tale of woe.  In cases like this, it is hard to pin the “winner” label on anyone, because it ultimately seems that despite whichever parent gets the favorable court ruling, everyone loses.

We begin with the classic “boy meets girl.”  Father and Mother—met back in 2001 when Mother lived in New Jersey and Father lived in Vermont.  Both already had children from previous relationships.  Father and Mother were involved for several years before Mother decided to give up Jersey and its shore to settle down with Father and several of her children in a rental house in Vermont.  Marriage, although discussed, never happened. 

Thursday, August 4, 2011

Indirect Awards and Accolades

Dear Reader(s)

Those of you who follow this blog, probably know that we have a regular cross-posting arrangement with our good friends over at Vermont Digger.  Like the Huffington Post, they take our best material and re-publish it each week for free.

Lucky us!

Wednesday, August 3, 2011

An Appreciable Height

By Nicole Killoran

In re Rinkers, Inc. and Shepard Act 250 Land Use Permit, 2011 VT 78 (mem.)

Today’s story takes place against the beautiful backdrop of Hardwick—a rural town with a quaint mix of farms, homes, small-scale businesses, and thick forest.  The Hardwick skyline, if you can call it that, rarely rises above the forest canopy and has the sleepy vibe of many towns north of Route 2 that hearkens back to a level of commerce that has long since dissipated. 

Tuesday, August 2, 2011

Mormonworld: the Theme Park

By Jeffrey Thomson

In re Times and Seasons, 2011 VT 76

The sensible side of me takes great consolation in Vermont’s Act 250 and its role as a barrier (often the only barrier) to some of the more baroque development proposals in many of Vermont’s zoning-free towns.  Yet, the part of me that relishes the “schemes of folly” has always wanted to go and see the Joseph Smith Theme Park & Gift Shop!  At least, the gift shop portion that is—welcoming me to the commercially friendly park of Latter Day Saints!   

Speaking Personally

In re Shenandoah, 2011 VT 68.

Let me suggest that there is a key difference in the way lawyers and civilians use language.  For most of us, outside the legal arena, language is a vehicle that we pack with meaning to send off to others.  If the words we choose create ambiguity or if, to extend the metaphor, we choose the wrong vehicle, there is no harm.  So long as our general sense is communicated, the language has served its purpose.  Sometimes, we even cultivate this tension between words and meaning to create humor, mystery, or drama. 

Lawyers have no use for such creative applications.  For lawyers, language is something to be pinned down, fixed, and then parsed.  If you have ever sat through a deposition or trial, you understand that a lot of what lawyers are doing is asking the same question six different ways to attack the answers for inconsistencies and to nail down every possible meaning. 

CSI: Putney

State v. Simmons, 2011 VT 69

Notwithstanding the high tech police procedurals with their fancy DNA gizmos and voice-analyzing do-dads, investigations still tend to rise and fall on three essential elements: tips, the innate stupidity of most criminals, and hard-work by the investigator to take advantage of the first two.  Today’s case is no different.

Wednesday, July 27, 2011

Silence Speaks for No One

In re Macero, Esq., 2011 VT 67 (mem.)

Simple story: Defendant was licensed as an attorney in Vermont and Massachusetts.  Defendant ran afoul of something in down south, and Massachusetts suspended her license for one year. 

Vermont, by law will also suspend an attorney’s Vermont license if she is suspended in another state, unless the attorney can show the imposition to be unwarranted. 

The Furlough Waltz

By Nicole Killoran

In re LeClair, 2011 VT 63 (mem.)

As with so many mootness cases, the conclusion of today’s case is rather anticlimactic, and the reader is left with a nagging sense that the SCOV dodged an easy bullet.  But even though the SCOV never gets to the meat of defendant’s appeal, there are at least two lessons for us to draw: first, a criminal defendant does not have a legally cognizable interest in receiving credit for time served if he has “sufficient prospects” for participating in drug court on a new charge; and second, habitual burgling leads to a confusing array of overlapping sentences. 

Defendant is apparently incapable of avoiding the temptation burgling offers.  Though, his concomitant tendency to get caught makes him more Apple Dumpling Gang than Deacon Brody

Ain’t Misbehavin’

Allen-Pentkowski v. Dept. of Labor, 2011 VT 71 (mem.).

In what would at first blush appear to be a straightforward case, the SCOV hands down a third-time’s-the-charm reversal and Plaintiff wins.  Plaintiff had issues with her newly imposed work schedule, so Defendant fired Plaintiff.  She applied for unemployment benefits.  The unemployment claims adjuster determined that Plaintiff’s work-schedule issues rose to the level of misconduct.  An Administrative Law Judge reversed the claims adjuster’s determination, and then the Employment Security Board reversed the ALJ.  The SCOV, continuing the pattern, reversed the Board.

Friday, July 22, 2011

Small Victories

By Michael Tarrant

Rheaume v. Pallito, 2011 VT 72

Inmate is currently serving a life sentence as a “habitual offender.”  But this is not your borderline, “three-strikes and you’re out” habitual offender life sentence: Inmate has forty-eight convictions—five of which either involved sex crimes or had a sexual element.  Additionally, and apparently not one to rest on his out-of-prison-trouble-making laurels, Inmate has also racked up sixty-three disciplinary report convictions since being incarcerated.  Two more and I’m told he gets a coupon for a free iced coffee from the prison commissary.

Monday, July 18, 2011

Golden Oldie

Mountain View Community School, Inc. v. City of Rutland, 2011 VT 65

By Andrew Delaney

Mountain View Community School sought a tax exemption as a “college, academy, or other public school” under 32 V.S.A. § 3802(4) from the City of Rutland.  When the City denied the exemption, Mountain View sued for declaratory and injunctive relief, in large part to prevent a threatened tax sale.  The first judge on the case granted Mountain View an injunction staying the sale pending completion of the action, but a different judge later ruled that Mountain View was not entitled to the exemption.  Mountain View appealed, and the SCOV reversed.

Retail Rentals

In re Tyler Self-Storage Unit Permits, 2011 VT 66

What comes to mind when you read the words “retail rental?”  Perhaps you think of a rent-to-own store with a showroom full of HD TVs and living room sets.  Or maybe a shop lined with shelves of empty DVD cases (mainly depicting horrific torture and slavering monsters for your kids’ viewing pleasure) among which you search for a video that will simultaneously appeal to two adults, a grade-schooler and a toddler.  Or maybe that is just me.

Wednesday, July 13, 2011

Summer Housekeeping and Judicial History

Greetings Loyal Reader(s),

As you may have noticed, we have slowed postings down at SCOV Law for the past few weeks. Blame falls squarely on the twin gates of summer vacations and busy work schedules.  Do not fear!  We are sitting on a treasure trove of recent opinions and will be posting soon.  

In fact, we will soon have a full year of Vermont Supreme Court summaries available on-line!  A cause for celebration, we hope.  As well, there are plans for the return of several of our more popular lifestyle blogs including the Cultured Barrister and Davey Numberlady.

In the meantime, make plans to attend one of the best CLEs of the year this Friday, July 15th at 2pm at the Rutland Superior Court house (Civil division).  Vermont historian and occasional SCOV Law contributor Paul Gillies will be hosting the Vermont Judicial History Society's annual seminar/historic trial.  This year, the VJHS will be discussing and recreating the closing arguments from the famed Matthew Lyon trial.

No trial in Vermont's history has received as much national attention as this one. Roundly condemned as an obvious violation of the First Amendment, the Lyon trial and imprisonment are today regarded as beyond the limits of constitutional tolerance.

Come join in the fun and observe history in the re-creation.  

Monday, June 27, 2011

No Double Dipping Allowed

By Jeffrey Thomson

State v. Sommer, 2011 VT 59

When determining the length of a convict’s prison sentence, Vermont law requires the court to apply credit for time spent in custody awaiting trial.  This requirement is clearly set out in 13 V.S.A. § 7031(b),

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which the person is received at the correctional facility for service of the sentence. The court shall give the person credit toward service of his or her sentence for any days spent in custody in connection with the offense for which sentence was imposed.

However, this type of pre-sentence credit does not apply if the individual is already serving a sentence for a previous conviction.  In essence, you cannot use §7031(b) to have the time spent serving your first sentence applied towards your second sentence.  Common sense . . . right?  Perhaps not, because this is exactly what Mr. Sommer tries to accomplish in today’s case.

Friday, June 17, 2011

Excepting the Dead

In re Guite, 2011 VT 58.

Imagine this.  You are looking for the perfect home for your family.  After scouring the state, you finally find the perfect parcel to build your dream.  There is one hitch.  The site where your family’s dream house should go—the spot where the sun and mountains coalesce into a backdrop that would make Frederick Church blush—is also the site of an old cemetery. 

But you are a dreamer, a dreamer with capital.  So you go ahead and purchase the land and lay in plans to build.  But first you have to remove the cemetery.  This should not be a big deal.  The last burial was before 1853.  Who is going to care about some bodies in the ground?  We are talking about a killer building site.  Or as your construction foreman might say, “Whadda they care?  They ain’t using the view.”

Splitting Heirs

By Michael Tarrant

In re Estate of Phillip Lovell, 2011 VT 61

Ah yes, the classic tale of father makes will, father gives son power of attorney, son executes self-serving transfer of property, and family cries foul. 

Make the son creepy and add one Mystery Machine and a talking dog with a speech impediment and you basically have an episode of Scooby Doo.

Friday, June 10, 2011

Drugs, Sex, and ‘Rock’ and Roll: Part Two

State v. Faham, 2011 VT 55 (mem.)

So here’s the thing. 

Lying on top of a woman and threatening to kill her unless she has sex with you is attempted sexual assault.  Just in case anybody was unclear on that.

Monday, June 6, 2011

Rural Rashomon

State v. Charbonneau, 2011 VT 57

For Plato the idea of truth was an absolute that we, as mere shadows, could only approximate and mimic in varying degrees.  Nowhere is this truer than in court when multiple witnesses testify to the same event.  For even the simplest of questions (“Where was the car parked?”), you will in any ordinary trial get a variety of answers (“in the driveway”; “on the street”; “there was no car”).  It is not that witnesses are lying, covering up, or even misremembering, but it is just the reality that each of us perceives and catalogues events in different ways.  Our memories are subject to all sorts of accidental and purposeful manipulations.

Sunday, June 5, 2011

Cover Me

Southwick v. City of Rutland, 2011 VT 53

The factual story behind today’s case is not a tragedy on par with Hamlet or the Iceman Cometh.  It is, in fact, a straightforward narrative that may be dispatched in one sentence: girl attends a swim meet, falls off a piece of playground equipment, and suffers a terrible injury. 

That tale, however, is not really the subject of the SCOV’s decision or its competing analyses.  Rather, this accident and the resulting injuries are just catalysts for the larger events at issue and the broader tragedy that we might title The Well-Meaning Association That Did Not Read Its Contract Carefully.