Friday, April 29, 2011

Guess Who Is Coming After Dinner?

State v. Meyer, 2011 VT 43

Pity the poor tattoo artist.  Is there any other profession where a white supremacist feels comfortable to approach you about helping him touch up his various symbols of white pride?  

That is exactly what happened to the complaining victim of today’s case.  Defendant approached him about touching up his tattoos, which were apparently starting to fade (perhaps Hitler’s mustache was not as vibrant as it once was).  Artist to his general credit refused to have anything to do with Defendant’s racism and turned him down.

One Bite at the Apple

Stephens v. Applejack Art Partners, Inc., 2011 VT 40 (mem.).

In this recent opinion discussing the enforcement of arbitration awards, the SCOV very quickly and concisely upholds the trial court’s order enforcing an arbitration award and entering judgment in plaintiff’s favor.

Applejack, a Vermont corporation that produced and sold artwork, employed Plaintiff, who subsequently invested over a million dollars in the company in exchange for stock shares.  In 2008, Applejack terminated Plaintiff’s employment, and Plaintiff filed suit.  Applejack subsequently counterclaimed and sought an order enforcing its right to repurchase Plaintiff’s stock shares. 

Monday, April 25, 2011

Cultured Barrister Makes an Appearance

One of SCOV Law's more popular voices, the Cultured Barrister will be making an in-person appearance on Tuesday April 25th at 1pm and Thursday April 27th at 1pm at the Langdon Street Cafe in Montpelier.  The CB will be there as part of the Cafe's annual Geek Week Festivities and will be manning the help desk to answer your professional lifestyle questions.  The good people at Langdon Street would love to see you, and the entire week is well worth checking out.

Keep on the lookout for the CB's long-awaited follow-up blog post entitled This Sporting Life that should be posted here before the end of this week.

The First Divorce

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.   Today Paul presents us with the first divorce in Vermont.  

            The Vermont Supreme Court in 1779 (then called the superiour court) had "cognizance of all pleas of the state, that relate to life, limb or other corporal punishment: also fines, banishment and divorce; and shall have power to hear and determine the same by jury, or otherwise according to law, and award execution accordingly."  That's from the first judiciary act of 1779, enacted in February of that year.  That summer, the Court met in Rutland on June 10, and heard and decided the first divorce in the state's history. 

            This was their fourth meeting since the creation of the court, in its first term—their sixth day on the bench.  Chief Judge Moses Robinson, and side judges (yes, that was the name of the office) John Throop, John Fassett, and Thomas Chandler had three items on the agenda that day—admitting the third lawyer in the state to practice; a trial by jury of Hilkiah Grout, of Weathersfield, for conspiracy and treasonable conduct against the State by pretending to be a JP and administering oaths to several people without authority (conduct described in the decision as "wicked" and "flagrant"); and finally, a divorce.

What You Could Infer, If I Were a Carpenter

State v. Rounds, 2011 VT 39

A friend of mine once told me a story that falls in line with today’s case.  After finding a good contractor who did a great job repairing sheathing on the side of his house, he asked them to bid on a bathroom renovation job.  The bid came in low, and the crew started right away.  The problem is that they never went away, and while work progressed slowly, costs rose quickly.  When my friend inquired what was taking so long and costing so much, the foreman answered honestly.  They were going slow until the winter weather broke for their next job, and he admitted, they probably could have done the job cheaper, but they hadn’t done a bathroom renovation before and were teaching themselves as they went along. 

If you think my friend asked for a refund or that one was offered, then you really do not know much about construction practices in Vermont.

Wednesday, April 20, 2011

Broker Beware

Lang McLaughry Spera Real Estate, LLC v. Hinsdale, 2011 VT 29

We as a society use written contracts for many reasons.  One of the most important reasons is to guarantee that our initial agreements are binding on each other no matter what happens down the road.  A good written contract will almost always contain a clear set of terms and conditions that will guide parties through a relationship no matter how it may sour down the road.  This is important because contractual relationships sour with surprising regularity.  It is one of the basic realities of practicing law and one of the reasons that lawyers can send their children to private academies and tuition-heavy summer camps.  More on that in a moment.

Back in the Saddle Again

by Daniel Richardson

In re Melvin B. Neisner, 2011 VT 35 (mem.)

With two sentences, the SCOV reinstated Melvin Neisner to the practice of law last week.  We reported on the circumstances leading to this event, here and here.

Congratulations Attorney Neisner!

A Claim Too Far

Sullivan v. Stear, 2011 VT 37

Imagine this: you own a parcel of land for thirty-six years and basically never touch it, then finally at the height of the real estate bubble, you decide to develop and sell it.  Your contractors start preparing a house site, and all of a sudden one of the neighbors tells the contractor that he can’t use the access road to your property because it is the neighbor’s driveway.  The neighbor threatens to call the State Police if the contractor continues to use the road (a.k.a. driveway).  What is your next step?  Maybe a reasonable conversation in which you explain to the neighbor that the road is a town highway.  But the neighbor tells you that he has a deed and “clear title” to the road.  And in fact, a search of the land records shows that one of the neighbor’s deeds purports to convey the road that you thought was a town highway.  Now what?  That’s right . . . file suit.

Just Because I Did It Before

Piper v. Department of Labor, 2011 VT 32

Chalk one up for the little guy without a lawyer.  In this case, Mr. Piper and his former employer exchanged appeals all the way up the chain of decision-makers in the Department of Labor to fight out Mr. Piper’s claim for unemployment benefits.  At the first stage, the Department of Labor’s claims adjudicator concluded that Mr. Piper had refused suitable work without good cause.  Mr. Piper appealed this decision to an administrative law judge (ALJ), who reversed and found that the so-called suitable work was not so suitable.  The employer then took this decision to the Employment Security Board, who agreed with employer.  Ultimately, the SCOV reversed and held that the ALJ properly ruled that a ten-hour round-trip commute meant that the work was, indeed, not suitable.  Mr. Piper was awarded all of the benefits he would have received had the claims adjudicator not turned him down at the first step.

Tuesday, April 19, 2011

For Your Protection

In re Fink, 2011 VT 42

Two things lawyers really need to know: (1) contingent fee agreements need to be in writing (and signed by the client) and (2) you can’t charge 12% of the gross recovery on a claim for acting as a communication facilitator.

The SCOV took this one up on its own.  A Professional Responsibility Board panel found that Respondent violated “Vermont Rules of Professional Conduct 1.5(c) and 8.4(a) for failing to put a contingent fee agreement in writing and for attempting to charge an unreasonable fee.”  The Board recommended a public reprimand and probation.  And that’s what Respondent ended up with, though other possibilities were suggested by both sides. 

Know When to Fold ‘em . . . .

State v. Erwin, 2011 VT 41

I like to play poker.  The game involves a most-interesting combination of skill and luck.  Sometimes a calculated bluff goes wonderfully; sometimes it doesn’t work out.  By analogy, today’s case tells us what most experienced poker players know: you shouldn’t go all-in on a high-card-five hand.  Defendant here appeals his convictions of obtaining a regulated drug by deceit and possession of a narcotic—convictions he helped secure by insisting on a drug test to prove . . . that he had the drugs in his system.   The SCOV affirms.  

Defendant, a travelin’ nurse, allegedly liked Fentanyl—a Schedule II pain medication.  Fentanyl looks like water, and so, theoretically, one could replace Fentanyl with water and no one would really know.  Unless, of course, a coworker saw one doing this when one has no reason to be near where the Fentanyl is kept.  That, hypothetically, might cause a doctor to do something every parent does when they leave the kids home alone for the weekend—mark the level on the bottle.  Not so hypothetically in this case, the doctor carefully set the labels on the Fentanyl syringes.  The label on one syringe didn’t line up.  Doc sent the syringe to the lab, and, sure enough, someone had substituted water for Fentanyl.  

Friday, April 8, 2011

Davey Numberlady's Top Ten Outfits That Might Get You Kicked Out of Court

Davey Numberlady is a regular SCOV Law column dedicated to cataloging the small bits of trivia that populate the practice of law.  Today's list focuses on our appearance in court.  Leaving aside the client that comes to court with same outfit they plan to wear mowing the lawn, Attorneys often struggle with their appearance balancing the business casual of the office with the more formal attire expected in court.   Along with the formal manners and rigor of trial practice there is an expectation by judges, clients, jurors, and staff that lawyers will dress like lawyers.  Whether that means white shirt and black suit or some variation is probably fodder for the Cultured Barrister.  Today, Davey offers his own list of don't go theres.  Please add your own in the comment section.

1. Open toed sandals, with/without socks.

2. Nehru jacket, silky vest.

3. Tails and Top Hat

Would you trust this man to make your case?

Thursday, April 7, 2011

The Eyes Have It

Chase v. Agency of Human Services, 2011 VT 31 (mem.).

Starting the saga of Dr. Chase with this case is a bit like biting into the bottom of a sandwich.  It is essentially a mouthful of bread, which is just going to make all the contents pour out.

So let us begin with the top slice.  Dr. Chase practiced general ophthalmology and eye surgery in Burlington for over thirty years.  During that time, he allegedly developed two specialties: cataract surgery and convincing patients that they needed the former.  From the record, Dr. Chase comes across like the man with an amazing hammer, to which every task has begun to look like a nail.

Monday, April 4, 2011

A Bit More Play

State v. Delaoz, 2010 VT 65 (reargument)

We reported on the case of this hard-luck Defendant back in November 2010.  Defendant, as you may remember, gave a false name to the police that just happened to have an outstanding warrant attached to it.  When the police arrested Defendant and learned his real name, they did a pat down search and found a rolled up packet of cocaine in a dollar bill (which as he explained was “just a little bit for play”), a bag of cocaine, a bag of marijuana, a box of marijuana, six Seroquel tablets, another bag of cocaine, and a handcuff key.  Pretty much everything but a signed confession fell out of Defendant’s pants at the arrest.  This is not to mention the giant puff cloud of cocaine Defendant created at the station when he tore one of the bags open.

Friday, April 1, 2011

Now, Hold on Just a Second . . .

State v. Koons, Jr., 2011 VT 22.

Defendant was convicted of one count of sexual assault on a minor and one count of lewd or lascivious conduct with a child.  On appeal, he argued that his six-to-twenty-five-years-to-serve sentence wa grossly disproportionate to the crimes; and that “the sentencing court improperly relied on conduct underlying a prior acquittal without providing notice and an opportunity to respond.”  The SCOV agreed with the second argument, vacates the sentence, and returns to sender (but a different postmaster) for sentencing.

This case arose—mostly—out of a consensual sexual relationship.  However, at the time Defendant was nineteen and the complainant was fifteen.  The relationship ended just short of the complainant’s sixteenth birthday.  The complainant got pregnant and believed defendant to be the father. DNA testing later disproved his paternity.  The charge of lewd or lascivious conduct stemmed from an incident in which Defendant and Complainant laid in bed with another fifteen-year-old girl.  At trial, Defendant denied everything—including that he even known the girls. 

Unmodified Obligation

Louko v. McDonald, 2011 VT 33

A lump-sum Social Security Disability Insurance payment made directly to the beneficiary’s children can offset the beneficiary’s child-support arrearages.  It doesn’t get more exciting than this, folks. 

Mom and Dad married in 1988 and divorced in 2002.  They have two kids.  One of the kids is emancipated.  In the divorce, Mom got sole legal and physical parental rights and responsibilities for the kids and dad got a $326-per-month-child-support obligation.  Shortly after the divorce, Dad went to jail and stayed there until 2006.