Monday, December 10, 2012

New Frontiers

Hemond v. Frontier Communications of America, Inc., 2012 VT 94 (mem.).

To truly under understand why defendants fought against the action and took the appeal, read this summary, and then read the last line of the published decision.

Here are the facts, Defendant and its predecessor corporation owned a number of transmission lines.  In 2002, it undertook the reconstruction of a substation in Richford.  As part of this work, Defendant redesigned and installed Switch 14E.  At the time, Plaintiff was employed by Defendant as a lineman, albeit not from Wichita.

Hold Me

State v. Steuerwald, 2012 VT 98 (mem.).

If this blog teaches you anything it is (hopefully) this: that the practice of law rarely looks like what you see in the media.  No telegenic lawyers pushing for justice and fundamental human rights against a system that is still sorting out the essential constitution from mere politics.  No screaming, over-the-top litigators telling the system that “it’s outta order.”

No, there is nothing like that in the day-to-day practice.  Instead, it is a bunch of (mostly) well-intentioned attorneys trying to make the best arguments in favor of their client’s interest and a court system that is simply trying to get it right. 

But every now and then there is a case that shows the drama of the law and the pathos of life wrecked upon the shores of the legal system.

[Re]Coupon Taxes

World Publications, Inc. v. Vermont Dept. of Taxes, 2012 VT 78

Today’s case concerns the amount of taxes a free newspaper must pay for the coupon section that it offers to readers as a monthly special. 

That’s right, it is a tax appeal case, and the question at the heart of it all is this:

When you break down a newspaper into its component parts, does it include a once-a-month coupon book? 

“No, no it doesn’t,” says the SCOV. 

Back to My Little Grass Shack

State v. Shepherd, 2012 VT 91.

Today’s case involves restitution in a criminal matter that divides the SCOV on the issue of what constitutes a material loss from a crime.  Due to the extreme nature of the crime as well as the expansive, but logically connected remedy, this case has the potential, as the Dissent warns, of opening a new era in expanded restitution awards or, as the majority asserts, to simply be a legal cul de sac of little value beyond its own fact-specific outcome.

Here are the facts.  Defendant was hired by victim’s family to take care of victim, a minor, and his brother, who has autism and a kidney disorder that keeps him in constant pain.  Mom has fibromyalgia and was unable to care for her sons.  Defendant, exploiting his situation, sexual abused and assaulted the victim numerous times over a two-month period.

The Development Next Door

In re Woodstock Community Trust and Housing Vermont PRD, 2012 VT 87.

There ought to be a name for this kind of case because its type is common event in land use law.  Calling it BANANA-NIMBY as one contributor has suggested may capture some of the feeling, but it does a disservice to both sides and to the totally committed nature of the litigation.  Appeals of this ilk are not simply protective actions by a neighbor trying to protect her view or a favored open field.  It is a primal scream that expresses outrage across the spectrum.  It says that this project not only offends me, it offends the Town, our community, the land use laws of this state, the zoning practices of the past fifty years, private property boundaries, and the common decency we expect in Vermont. 

In short, an appeal like this one is absoluter kreig.  Neighbors opposing the development at the heart of today’s appeal have filed multiple lawsuits, attended countless zoning meetings, have retained a cadre of expert witnesses, and have likely spent more hours trying to stop this project than you can imagine.  In this respect, NIMBY or like terms are not accurate.  These neighbors have looked at the proposed development and have come to believe that something foul lies at its heart, and they have pledged time and fortune to see that it does not come to pass.

Wednesday, December 5, 2012

Having a Party

The Young Lawyers Division is having a holiday party in Rutland!

That's right!  Vermont's YLD is hosting its First Annual Holiday Party! 

The event is Thursday December 13, 2012 from 5:15-7:15 PM at Table 24 which is located at 24 Wales Street, Rutland Vermont,

There will be complimentary hors d'oeuvres and a cash bar.  

All attorneys and legal professionals are welcome for conversation and holiday cheer.

Time Has Come Today

Vt. Human Rights Commission v. State of Vt. Agency of Transportation, 2012 VT 88.

It seems appropriate to start off today’s summary with a shout out and congratulations to Robert Appel, the now-former Executive Director of the Vermont Human Rights Commission and lead counsel for Appellants in today’s case. 

For those not familiar with the VHRC or Mr. Appel, the Commission is an autonomous agency in state government that protects individuals from discrimination.  Whether that discrimination is from the state or a private actor or whether it is employment, accommodation, or housing discrimination, the VHRC is charged with investigating, prosecuting, and ending such practices.  And for the past eleven years the face of the VHRC has been Mr. Appel. 

House Poor

In re Clifford, 2012 VT 95.

The facts of this case are simple and elegant.  Applicant sought long-term home health care benefits under Vermont’s Choices-for-Care program, which Medicaid funds through the state. 

Like most Medicaid programs, Choices is income and asset sensitive.  That means an applicant must show that she is below a certain income level and does not have valuable assets on her books. 

As with all things legal, there are exceptions to certain income and certain assets.  In particular for this case, the rules allow an applicant to exclude the value of her home, related outbuildings, and surrounding contiguous property. 

Somebody Else’s Mess

In re Crannell, 2012 VT 85.

Whew!  Talk about a mess!

Petitioner was originally convicted of murder in 1995.  He lost his appeal in 2001 and filed a Post-Conviction Relief Petition that same year.  Eleven years later, he appears before the SCOV trying to clarify the preliminary issue of securing counsel to review, draft, and litigate his petition. 

Think of it this way, 92% of PCR cases are resolved within 3 years of their filings.  The remaining 8% are finished shortly thereafter.  Petitioners’ case has continued nearly four times as long, and he has not passed Go.  Hell, he has not gotten past Baltic Avenue.  As the concurrence notes, Petitioner likely has the oldest pending civil case in the entire state.

Tuesday, December 4, 2012

Sheet Stains Tell No Tales

In re Wiley, 2012 VT 76.

One of the main beneficiaries of DNA science in the last 30 years has been the criminal justice system.  As the testing becomes better, more widely available, and more reliable, the question of whodunit is more and more likely to have a solution.

The effectiveness of DNA evidence has not only been a prospective boon to current defendants, but it has proven to be a holy grail for those who claimed to be wrongly convicted and seek exoneration.  One need only quickly browse the Innocent Project and other, similar organizations to see that DNA testing of old evidence is a vital method of correcting flawed verdicts.

As a result of such work, many states, including Vermont, have adopted Innocence Protection Acts (IPA) designed to provide convicted felons with access to DNA testing.  The balancing act here lies between giving convicts meaningful access to DNA (and potentially exoneration) and not merely making this another wild goose chase for inmates that have no chance at proving their innocence but have every incentive for requesting such procedures. 

Monday, December 3, 2012

“Dead” DataMaster Delivers Defendant

State v. Spooner, 2012 VT 90

One of the most-amusing parts about this case is how it starts its path through the judicial system.  Just before midnight, Defendant gets stopped after ignoring a “Road Closed—High Water” sign and crossing a flooded roadway.   

Now I don’t know about you, dear reader, but a sign like that is a challenge to someone like me.  Some people might say that’s because I’m a moron, but “some people” is downstairs reading a book after the kids have gone to bed and can’t hear me muttering—so there.

Stop! (In the Name of Ownership)

State v. Edmonds/State v. Cobb, 2012 VT 81.

Today’s case seems like the response to a cocktail party question: Can a police officer pull a car over if the computer says the owner’s licensed is suspended?

The answer, not too surprisingly, is yes.

Friday, November 30, 2012

Just what the Doctor Ordered . . . Well, not really

In re Jon Porter, M.D., 2012 VT 97

This case turns partially on the definition of “legally liable” and—though no one is going to say it out loud—partially on common sense.

Here’s the scenario: Physician Assistant (or “PA” for short) overprescribes and perhaps diverts certain controlled substances.  Doctor is responsible for supervising PA.  Doctor, acting on a tip, concludes that PA is improperly prescribing drugs.  Doctor files a complaint against PA with the Board of Medical Practice.  Question: Is Doctor guilty of unprofessional conduct based on the PA’s acts?

Common Sense and its Exceptions

Taylor v. Fletcher Allen Health Care, 2012 VT 86

Being a pro ser ain’t easy.  

Plaintiff sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following lumbar-spine surgery.   She didn’t disclose any expert witnesses, and so FAHC moved for summary judgment.  The trial court granted the motion on the basis that Plaintiff couldn’t prove her claims without expert testimony.  A somewhat-divided SCOV affirms.  

Let’s look to see why.

Death Be Not Covered

In re Estate of Dunn v. Windham Northeast Supervisory Union, 2012 VT 93.

Workers’ compensation schemes have a simple structure: the State requires employers to carry workers’ compensation insurance to reimburse employees for medical and economic losses resulting from work-related injuries—even if a third-party tortfeasor caused the injury.  In the latter case, the insurer ends up paying the bill for someone else’s screw up. 

To be fair, Vermont’s workers’ compensation program gives the insurer a right to recover its losses from whatever award the employee gets as compensation from the wrongdoer.  It also allows the insurer to go after the wrongdoer directly if the employee doesn't sue.  This is what is known in the business as subrogation: insurer gets to stand in the employee’s proverbial work shoes and sue the wrongdoer on the employee’s behalf.

Tilting at Tax Appeals

Sobel v. City of Rutland, 2012 VT 84.

Sometimes a lawsuit is nothing more than a prolonged reaction to a single mistake.  A driver appears to waive another car forward, and the parties spend years litigating the question of whether this gesture caused the ensuing accident. 

Today’s appeal is essentially this problem writ large.  Plaintiffs are doctors who had the entrepreneurial idea to buy a residential property in Rutland, tear it down, and build an office building where they could house their practice and potentially charge commercial tenants commercial rents.

Tuesday, November 20, 2012

Davey Numberlady's Top-Ten Funniest Law Videos

Davey Numberlady is a semi-regular SCOV Law column dedicated to cataloging the small bits of trivia that populate the practice of law. Today's list focuses on the most-fun videos having to do with lawyers and law school. There are many humorous videos relating to law out there. Here are ten that Davey loves. Please add your own in the comment section.

10.  This guy seems . . . well, bitter.  It might be funnier if it weren't so sad.  Check out his current website.

9.  This one is a classic.  If you or someone you know is thinking about law school, please make that person watch this video.

Tuesday, November 6, 2012

Crazy on Condition

State v. M.W., 2012 VT 66.

Today’s case involves the criminal statute governing how a trial court orders a psychiatric evaluation of a defendant for competency to stand trial.

Here is the long version of how it works: the statute allows the trial court to consider the issue if the defense, the state, or the court believes the defendant lacks the mental capacity to stand trial for the alleged crime.  Once such a motion is made, the trial court is required by the statute to order an immediate initial screening by a mental health expert. 

Based on this impromptu exam and the facts and circumstances available to the trial court, it may determine whether a full examination is warranted.  The trial court is also to determine the least restrictive environment to conduct examination with the provision that the trial court shall not order an examination to take place in a mental health facility, unless the preliminary examination determines that the defendant needs treatment.

Monday, November 5, 2012

Late-Game Interference

Bandler v. Charter One Bank, 2012 VT 83.

It’s tricky being a trial court in the ten states in which decisions are directly appealable to the state’s supreme court.  The court’s decisions must be within the boundaries of the law, such as it is when handed down and codified by the Legislature or interpreted piecemeal by the supremes (minus Florence Ballard).  The trial court’s decisions must simultaneously pass muster and creatively interpret the precise contours of amorphous legal concepts.


State v. Brandt, 2012 VT 73

Defendant wanted to go to a party.  One late-summer evening Defendant woke his wife up, and told her that he planned to take their shared car to a party.  Wife pointed out to Defendant that she had to work in the morning, so he needed to get back with the car before she had to leave the next day.  Defendant felt this was curfew-like in nature, and the ensuing argument turned violent.  Defendant threw his wife down, and her head struck an unidentified hard object.  Defendant then drove to the party, while his wife lay dazed in the back seat.  At the party, she managed to find a ride home from a friend, who saw a bump on the back of her head.

Monday, October 8, 2012

House Me Maybe

Bennington Housing Authority v. Lake, 2012 VT 82.

In the practice of law there are cases that come to your doorstep mid-process.  That is the client has done things a certain way for a long enough time that whether you agree with the steps they have taken or not, you are going to have to defend it in court. 

This is why lawyers make the big bucks and what infuriates the public so much.  How can you defend your client’s actions, they ask?  The answer is we have no choice.  The client did what he or she did.  Our job is to just put the best face on it and go forward. 

One Trick Contract

Long Trail Condo. Assoc. v. Engelberth Construction, Inc., 2012 VT 80.

There are concepts within the law that are the legal equivalent of St. Elmo’s Fire.  They are unearthly, luminescent without illuminating, and harbingers of difficulty.  The Economic Loss Rule is first and foremost among these Will O’ the Wisps. 

The Rule is a court created doctrine that serves a simple and admirable purpose: bringing order and sense to business relationships and effectuating the intent of the parties.  It says this: when the primary nature of the parties’ relationship is contractual and when the damage done is limited to the object/building that was purchased through the contract, then the recovery will be under the terms of the parties’ contract and not negligence. 

Wednesday, October 3, 2012

Friendly Foreclosure

Daniels v. Elks Club of Hartford, 2012 VT 55.

Oh boy!  Sometimes there comes a case that is complicated.  And sometimes there comes a case that divides the SCOV.  And sometimes there comes a case that takes up a completely new area of law where the SCOV has to reason its way to an answer that is not immediately evident.  And then there are cases like today’s that read like a seven layer salad composed of all these issues and then some. 

Tuesday, October 2, 2012

To Be or Not to Be . . . A Franchisee (An unconventional pop-culture tragedy)

Evans Group, Inc. v. Foti and Foti Fuels, Inc., 2012 VT 77

[Act 1-Prologue]

To be, or not to be, a Franchisee, that is the question: Whether sub-distributor twas authorized to use refiner’s trademark in the pursuit of outrageous fortune, or to simply carry fuel across the Green Mountains until the Distributor said “no more.”  Ay, tis when the heart-ache began.  That franchise, though devoutly wished, twas perhaps just a dream, or, in the King’s Court, an Oppressor’s wrong, and that is what must give us pause.

The scene is fair Vermont.  Two wholesale fuel distributors, both with well-established reputations and long-standing customers, penned a lucrative distributing agreement on the back of a napkin.  The proposed deal went a little something like this: Appellee/distributor would sell fuel to Appellant/sub-distributor at a slight mark-up, which would then be re-sold to sub-distributor’s customer. 

Friday, September 28, 2012

The Case of the Chief and the Missing Overtime

Turnley v. Town of Vernon, 2012 VT 69.

Today’s case is a basic employment law issue wrapped in a coat of municipal law. 

Plaintiff was hired to be chief of police in 2006 for the Town, a small, sleepy hamlet in the southeast corner of the state on the New Hampshire and Massachusetts borders, not known for anything in particular

Plaintiff was paid a salary and held the position for three years.  At the end of that time, Plaintiff sued the Town for back pay.  Specifically, he claimed that he was due approximately 1335 hours of overtime for the hours he regularly worked above and beyond the normal 40-hour work week.  Town denied the claim, and Plaintiff filed his action.

Down the Memory Hole

By Nicole Killoran

In re Guardianship of A.S., 2012 VT 70 (mem.).

As you might imagine, being a developmentally disabled adult trying to gain some modicum of independence is a difficult and sensitive process.  Today’s case shows us that it can be equally complicated trying maintain control over the records evaluating your disability.

Our story revolves around A.S., who went through special education in primary and secondary school, and was placed in an involuntary guardianship (with her parents as guardians) when she turned eighteen in 2003.  At the time, A.S. did not have the option for a voluntary Guardianship as the law did not allow someone with mental and developmental disabilities to seek a voluntary guardianship.  In 2010, however, the Legislature amended the guardianship statutes to allow it, and A.S. sought to “amend” her guardianship to be voluntary.

Monday, September 17, 2012

General Aggravation

State v. Bourn, 2012 VT 71.

When the first sentence of a decision includes the words “an incident where he pointed an unloaded muzzleloader toward two police officers who were attempting to remove him from a home” you know it’s going to be an interesting read. 

Defendant was convicted of two counts of aggravated assault stemming from that incident.  He appeals with a twofold argument: first, that the charge of aggravated assault with a deadly weapon requires proof of specific intent to threaten and the trial court erred when it refused to give such an instruction, and second, that same intent may be negated by diminished capacity.  The SCOV agrees with Defendant that Vermont’s aggravated assault statute requires specific intent, and reverses.

The story begins with Defendant, his brother, and their buddy drinking and hanging out at the buddy’s house.  According to the buddy, at one point Defendant got very upset and began arguing with his brother.  Defendant became more or less “hysterical.”  Police officers, who I’ll call Toody and Muldoon (no idea about real names—but this sounds better than Officer 1 and Officer 2) came to the residence.  Defendant yelled obscenities and claimed that he was being deployed and was going to die “over there” . . . but Defendant isn’t and never has been in the military. 

Stand Down

Franklin Co. Sheriff’s Office v. St. Albans City Police Dept., 2012 VT 62.

Sometimes an entire case revolves around a single philosophical concept.  This is what makes the law difficult because legal concepts can be hard enough to grasp when they are tied to concrete examples.  But when a court asks, “What is Unfair Competition?” it might as well say, “What is air?” because the answers to both tend to be equally esoteric and unsatisfying to the idle examiner who wants to wrap her arms around more than a concept. 

Today’s case has three such key concepts:  1) Legal Standing; 2) Predatory Pricing; and 3) Public Entities.  Trying to define all three as well as explain their interplay is critical to unpacking the SCOV’s decision, but doing so is subtle work that is akin to parsing air with a knife.

A Quick One (While the State’s Away)

State v. Bresland, 2012 VT 75 (mem.).

Let us, like the SCOV in this case, be brief. 

Defendant was charged with three crimes following a traffic stop: DUI (third offense), refusal to take a breath test, and driving with a suspended license. 

The arresting officer submitted a sworn statement providing testimony and basis for probable cause for each element of the three crimes.  At Defendant’s initial arraignment, though, the trial court found that the State lacked probable cause for the second charge, refusal to take a breathalyzer.  The trial court gave no explanation for its ruling but dismissed the charge.

Friday, September 14, 2012

Il Buono, Il Brutto, e Il Esentato (The Good, The Bad, and The Exempted)

Galloway v. Town of Hartford, 2012 VT 61.

As the title says, today’s case is a three-way split concerning the application of the law enforcement exemption to the Vermont Public Records Act.  In an unusual split, we have a plurality opinion formed by two justices; a concurrence joined by two more; and a lone dissenter knocking the whole decision.  Lump on top of that the fact that two of the four members making up the majority were superior court judges specially assigned to the case, and you have a recipe for a Mexican Judicial Standoff.

So how did we end up here with a SCOV opinion that is the legal equivalent of three gunslingers in the middle of a Confederate Graveyard?

As usual, the answer starts with an unresponsive naked man found in the bathroom of a house.

All Vote And No Action

By Nicole Killoran

In re Rumsey, 2012 VT 74.

If you’ve been paying attention to political rhetoric lately, particularly with regards to recipients of welfare and social security benefits, you might assume that getting on the dole is as easy as panhandling on a busy street corner.  The reality is, qualifying for government assistance usually involves struggling to convince someone deep in the administrative state that you are truly in need of help, and appealing a denial until someone agrees with you.  As today’s decision also demonstrates, sometimes those busy bureaucrats just can’t be bothered with the details of your case, though for today’s applicant it happened to worked in her favor.

Some Things Never Change . . . Never

Vt. Golf Assoc. v. Vt. Dept. of Taxes, 2012 VT 68

Benjamin Franklin once said, “But in the world, nothing can be said to be certain, except death and taxes.”  Today’s case is no exception.

Here are the basics.  Plaintiff Association is in the business of sponsoring golf tournaments throughout the State of Vermont.  Would-be golfers pay the Association an entry fee for sponsored tournaments and Association then pays green fees to the hosting golf course.  It all seems relatively straightforward.  But the Tax Department put the Association in the rough when it audited the Association for tax years 2001 through 2008 and determined that the Association owed some green fees of its own—namely unpaid sales and use taxes on previously collected entry fees.  

Following the audit, the Association began collecting and remitting sales taxes, under protest, to the Tax Department.  The Association also requested a hearing to contest the Department’s conclusion that these taxes were due in the first place.  A hearing was subsequently held and the Commissioner of Taxes determined that the entry fees were indeed subject to taxation.  

No surprise here.  Death and taxes, people, those are the only two sure things.

Monday, September 3, 2012

An Unreasonable Petition

By Nicole Killoran

In re Kirby, 2012 VT 72.

Today’s case is a post-conviction review decision.  As regular readers may remember, post-conviction review occurs after a criminal is convicted and sentenced and has exhausted all of his or her appeals.  Post-Conviction Review (or PCR as those-in-the-know call it) is an appeal to the superior court seeking relief from an error in the underlying process.  At a PCR hearing, the Petitioner (who is usually incarcerated) will argue that he or she received ineffective assistance of counsel, did not knowingly waive his or her rights, or possesses new evidence showing innocence.  What a Petitioner cannot do is re-try the original criminal case.

The old saw is that a defendant is entitled to a fair trial, not a perfect one.  PCR is the way we test the fairness portion of that proposition.  Ask John Grega if it works.

Say what you will

State v. Reid, 2012 VT 65

This appeal focuses almost solely on whether the time, content, and circumstances of a child-victim’s statements provided substantial indicia of trustworthiness.  The SCOV holds that the statements and circumstances in this case do, and affirms Defendant’s conviction for aggravated sexual assault. 

Briefly, the six-year-old child-victim in this case made statements to friends and neighbors, was subsequently interviewed by a DCF investigator and police officer, and also made statements at the hospital to a Sexual Assault Nurse Examiner (SANE).   The State gave notice that it intended to introduce several of the victim’s statements into evidence pursuant to Rule of Evidence 804a, and the trial court held a pre-trial hearing on the admissibility of the statements.

Unannounced Guests

Chickanosky v. Chickanosky, 2012 VT 52 (mem.).

Welcome back to the parties in today’s case.  They were last featured in an appeal from a year ago concerning the Father’s impending, post-divorce move to Missouri.  At that time, the SCOV affirmed the family court’s award of sole legal rights and responsibility to the father but granted summers to mother along with the right to see daughter if mother ever happened to find herself in Missouri.

As before, the central issue in today’s case is the incompatible love that the parents have for their child and the on-going difficulties arising from this conflict. 

Sunday, September 2, 2012

Well I Never!

Shaddy v. Brattleboro Retreat, 2012 VT 67

Most of us do not make it through elementary school without getting caught, at least once, with our hand in the cookie jar. Whether we are busted with the cookie firmly in our grasp or with only the aroma of freshly-baked, chocolate chips emanating from our breath, our reprieve will often depend more on what we say and how we say it—even more than the evidence mom can clearly perceive.

Blame it on a mother’s unconditional love, classic denial, or that second glass of wine she chugged just before you hopped off the bus, but if there is any rational explanation for your otherwise indisputable wrongdoing, she will want to accept it as true.

Friday, August 31, 2012

License to Rent

By Nicole Killoran

In re Toor, 2012 VT 63.

As members of the bar who dabble in municipal law well know, a zoning case often boils down to BANANA-NIMBY: Build Absolutely Nothing Anywhere Near Anything, and most certainly Not In My Back Yard.  These cases usually boil down to a question of how to interpret a town’s zoning bylaws.  But underlying the textual analysis of every zoning appeal is a pissed off neighbor (or several), usually someone rich enough to hire an attorney to challenge his neighbor’s activities.  Today’s case is no exception.

The setting for today’s case is Grand Isle.  The subject property is a vacation home with sleeping accommodations for 15 located at the north end of Ladd Point— the “gateway” to Lake Champlain.  Defendants are Californians who have in the past used their enormous seasonal playhouse as an entertainment and gathering hub.  Defendants also allowed friends and family borrow the use of the property on occasion.

The Late Shift

In re Richard A. Scholes, Esq., 2012 VT 56 (mem.).

As attorneys, there are several levels of discipline that we face for our mistakes.  The most severe—disbarment—is normally reserved for financial crimes (taking client’s money) or similar dishonesty that directly violates a client’s interest or trust.  In other words, there are some actions that if caught will render you unfit for the practice of law—forever.

On the other end is an anonymous reprimand.  In such cases, the lawyer’s name is not given to the public, but he or she knows that they crossed a line.  Such reprimands are often for minor violations—failure to follow up on an issue in a timely manner, accidental overdrafts, unnecessary delays where no harm follows to the client but the level of professionalism is lacking.  In such cases nothing happens to the attorney’s ability to practice, but she is put on notice that she should be more careful and conscientious in the future.

Slightly above the private reprimand is the public one.  Here, the attorney’s name is published and broadcast publicly as being subject to a reprimand.  The attorney’s actions are severe enough to warrant public notice and to serve as an example to others. 

The Frugal Victim

State v. Tetrault, 2012 VT 51 (mem.).

This is a straightforward little ditty in which the SCOV refuses to second guess the trial court or penalize a victim in a restitution case for his modest shopping habits.

Defendant in this case broke into victim’s camp and set up home.  Using the available supplies, Defendant wrecked the place.  When the state police caught up with him, several of the victim’s appliances were down for the count, and the camp was quite a bit worse for the wear as Defendant, his dogs, and others had trashed the place.

Tuesday, August 28, 2012

Relationship Issues

Mohamed v. Fletcher Allen Health Care, 2012 VT 64

It could once be said that what you do on your own time is your business—at least for purposes of unemployment eligibility.  Today’s case, however, seeks to challenge this conventional wisdom and raise the stakes for employees caught with their pants down at an off-campus event.

A Parting Partition

By Nicole Killoran

Nystrom v. Hafford, 2012 VT 60.

Today’s case stems from the fallout following a romantic relationship that produced a home and a joint tenancy and threatened to—but never did—consummate in marriage before things got ugly.

Plaintiff and Defendant dated for seven years, during which time Defendant purchased a plot of land.  In 2009, Defendant conveyed title to himself and Plaintiff as joint tenants with right of survivorship.  This gave each of them an equal ownership interest in the land.  Plaintiff and Defendant proceeded to build a house on the property with Plaintiff’s parents providing a substantial portion of the labor, materials, and money for construction.

Chaos Is a Friend of Mine

By Michael Tarrant

Eaton v. Prior, 2012 VT 54

Today’s case began rather innocuously as an action against Plaintiff’s former employer and supervisor for sexual assault and ended up as an argument about polygraphs and statutes of limitation.  As is so often true in life—what starts out simply ends up a convoluted, complicated mess.

Back in July 2004, Plaintiff filed a lawsuit against her former employer and supervisor, alleging that she had been sexually assaulted on the job.  The parties agreed: that both Plaintiff and her former supervisor would submit to a polygraph in order to determine the credibility of Plaintiff’s claim; that a certain polygraph examiner (Polygrapher) would be employed to perform the test; and that the results would be admissible at trial.  The decision to employ Polygrapher would ultimately prove to be the proverbial flap of the butterfly wing that would change the course of Plaintiff’s lawsuit forever.

In the Heat of the Night

State v. Paro, 2012 VT 53 (mem.)

Why reinvent the wheel?  Here’s how the SCOV frames it: “This case presents a simple set of facts and a single question for review: whether a truck idling in the middle of the night in the parking lot of an auto repair shop that had previously been burglarized is sufficient to give police reasonable and articulable suspicion of criminal activity.”  The SCOV finds that it does not and reverses the trial court. 

(In other, unrelated news, the SCOV does not rule on whether a giant tractor in a police parking lot gives police a reasonable and articulable suspicion of criminal activity.  (Apologies to Roger Pion and the Orleans County Sheriff’s Department.))

Don’t Tell It to the Judge

State v. Mead, 2012 VT 36.

Let’s face it.  When you are on the wrong side of a State v.____ ticket, chances are you have done (or at least been accused of doing) something dumb.  Many journalists make a healthy living pointing this out over and over again.  More bloggers do it for free.

Today’s Defendant provides the case in point.  In 2009, Defendant attended a summer house party in Burlington.  Also attending the party was Defendant’s ex-girlfriend/mother-of-his-child and her new boyfriend.  Defendant took the opportunity of a public social situation to try to reunite with his ex-girlfriend and began trying to engage her in various conversations about getting back together.  Ex-girlfriend was apparently not persuaded by Defendant’s repeated rhetorical approaches. 

Friday, August 10, 2012

A Call to Arms

Pcolar v. Casella Waste Systems, Inc., 2012 VT 58. 

Today’s lesson in modified-comparative negligence comes to us courtesy of a Chittenden County jury verdict and my first-year torts class. 

Back in the Unnamed Partner’s heyday, tort law was a strict area of the law when it came to fault.  If someone brought an action to recover from, say, a horseless-carriage accident, and it was shown that she had contributed even a small bit to the accident then plaintiff was barred from recovering anything.


Breslin v. Synnott, 2012 VT 57

Friends don’t let friends draft QDROs.  For our lay readers, a QDRO (Qualified Domestic Relations Order) is a special family court order that pension plan administrators require before they will distribute one person’s pension benefits to his or her ex-spouse according to the terms of a divorce.  We can blame the Feds or ERISA for QDROs, but that’s an acronym explanation FAD (for another day).

Don't Put Any Stock in It

By Nicole Killoran

Mueller v. Mueller, 2012 VT 59.

As Hollywood teaches us, a night of unhindered drinking and debauchery can set off a chain of events that haunts us for days or even years afterward.  Sometimes obtaining a divorce decree is the same way.

Today’s case involves an ambiguous promise made 37 years ago in a separation agreement, a subsequently deceased ex-husband, and a first wife suing the second for all she’s got.  Call it, the Hangover part 3: Surprise at the Probate Court.

But, let’s flashback to the beginning. 

Monday, July 23, 2012

Left Unsaid

State v. Hammond, 2012 VT 48

Move along, folks.  This one is strictly for the criminal bar.  It is also graphic; so keep the kids away.

The facts are as follow.  Along with other family members, Defendant lived with his Stepdaughter.  One day, when Stepdaughter was an 18-year-old high school student, she and Defendant were home together.  No one else was there.  Stepdaughter had run a cross-country race and her legs hurt.  Defendant offered a leg massage.

Friday, July 13, 2012

Olly Olly Oxen Free

Olio v. Olio, 2012 VT 44.

We forget in the midst of the hyperbole of modern life that there are some arguments, some tools, some procedures that are off-limits to everyday use. 

For all the talk of “nuclear options” that float around in our rhetoric, it would seem that few of us appreciate the idea that some power is only to be used in case of emergency. 

The law, however, has many such tools entrenched in its case law and procedural rules.  The phrase “extraordinary relief” means just that—remedies in case of emergency. 

Tuesday, July 10, 2012

History Repeats Itself

The most notorious trial in Vermont judicial history is State v. Boorn (1819). 

It is notorious because the murder victim, Russell Colvin, walked back into town exactly one month before Defendant Stephen Boorn was scheduled to be hung for killing him.  

Friday, July 6, 2012

Mixed Motives

Lamay v. State of Vermont, 2012 VT 49 (mem.).

Once again, today’s case brings us to the well of employment law, and the procedural and factual tangle that this area encompasses.

Today’s case is a discrimination claim, which follows one of two formats.  When an employee is terminated and claims that she was terminated for an inappropriate, discriminatory reason, the case follows one of two formats.

It’s Too Late, Baby

Beebe v. Eisemann., 2012 VT 40 (mem.).

Attorneys are notorious for missing deadlines.  Discovery responses that are due at the end of the month get extended through the summer.  That appellate brief due on the Ides of March is eventually filed by Cinco de Mayo.  A motion for summary judgment promised for the client is knocked back in lieu of more discovery.

But there is one deadline that is inflexible, unbending, and causes litigators to wake up in the middle of the night in a cold, cold sweat. 

Friday, June 29, 2012

Don’t Tape Me, Bro!

Hall v. State of Vt., 2012 VT 43.

Employment discrimination cases are often difficult for two reasons. The first are a series of highly technical evidentiary and procedural gates that swing back and forth between employer and employee depending on the stage of the case.  The second is the complicated factual story that precedes the litigation.

Today’s case is much more focused on the second difficulty as the SCOV tries to untangle a complicated web of releases, allegedly retaliatory behavior and a tardy set of decisions from the trial court.

Wednesday, June 20, 2012

Moving Target

State v. Burke, 2012 VT 50.

First Principle: When you file over 190 pre-trial motions, you are not going to have much luck convincing the SCOV that you were denied a right to a speedy trial.

Second Principle: If you threaten the prosecutor, your defense attorney, the court, and witnesses, you will likely be shackled during the trial—no matter how bad it looks.

Third Principle: When you are on trial for sexual assault, and the primary issues are consent and credibility, you do yourself no favors if you become agitated, aggressive, and angry every time you are in court. 

Fourth Principle: Do not repeatedly insult the court and attorneys.  If you feel you have to make over a hundred insults in a single hearing, you are probably on the wrong track and are probably repeating yourself.  o

Fifth Principle: When you have violated the first four principles, it is probably a good time to go to the mirror and ask, Am I really doing myself any good with all this?
(Hint: No.)

So what happened? 

Thank You for Participating

In re Petition of New Cingular Wireless, 2012 VT 46.

Mapping the legal world is like any project in geography.  It is a matter of figuring out the location and outline of each little sovereign state, and then placing them within the whole and establishing where the lines connect. 

In that light, let us consider the legal sovereign known as the Public Service Board.  This is the state entity that reviews, approves, and oversees the various utilities in Vermont.  It is part of the reason why you only have one choice for electricity.  For efficiency, the State has licensed to each utility the exclusive right to provide such a service within a discrete area.  In return for this monopoly, the utility submits to the authority of the PSB and makes regular filings for rates, services, and any changes. 

Writ Large

State v. Sinclair, 2012 VT 47.

In prison, your options are limited.  After daily meals, you can attend chapel with Johnny Cash, walk the yard with Cutty and Wee-Bay, sit in your cell contemplating your crime with George Bluth, or you can file motions to attack your underlying conviction. 

Tuesday, June 19, 2012

Son of Payback

Doe v. Vermont Office of Health Access, 2012 VT 15A.

Don’t sequels always disappoint?  Today’s case is a re-publishing of a decision that the SCOV issued back in March and was first summarized here

Foolish Consistency

Vt. Human Rights Commission v. State of Vt. Agency of Transportation, 2012 VT 45.

At first glance today’s case appears to be a bit of a humdrum.  One state agency challenges the other over the precise meaning of particular terms in a statute.  It appears to have all the excitement as the one-dollar wagers that Randolph and Mortimer Duke used to make.  But like the Dukes’ wagers, the real story of today’s case is how the meaning of such words impacts the lives of those around the agencies.  There is more going on here than frozen orange juice futures. 

What is at stake is vacation time. 

Saturday, June 16, 2012

Play Musty for Me

In re Musty Permit, 2012 VT 42.

Here is the big difference between zoning cases and just about every other case an attorney comes across on the docket. 

When a civil, criminal, or family case is resolved, it is done.  End of the civil cases means somebody does or does not get money.  End of the criminal case means defendant goes to jail or does not.  End of the family case means someone gets the kids, someone gets the money, and someone gets Fido. 

Monday, June 11, 2012

The Fuzzy Fine Flooring Fiasco

First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 38

Today’s case will floor you—

But seriously, folks  . . . in 2007, the Kirschbaums bought some carpet from First Quality and hired the company to install the same in their home.  Under the terms of their agreement, the Buyers agreed to split payments into thirds (1/3 down; 1/3 when carpet arrived from manufacturer; and 1/3 when it was installed).  In accord with this, Buyers made the first two payments with a credit card. 

Here, of course, is where it gets interesting.

The Jurisdictions That Bind Us

By Michael Tarrant

Yanmar American Corp. v. Crean Equipment Co., 2012 VT 35 (mem.).

Back in 2006 and 2008, Defendant, an equipment company located in Pittsford, Vermont, entered into dealer agreements with Plaintiff—an equipment supplier and a corporation registered in the state of Georgia—to purchase equipment and display it for sale in Vermont. 

In 2007, Defendant purchased some equipment from the Georgia Supplier, financed through a third party. In 2009, Defendant fell on hard economic times and defaulted on its loan. This resulted in the Georgia Supplier canceling Defendant’s contract and repossessing the equipment purchased through the agreement. 

After repossession, Georgia Supplier realized that the equipment had been put to heavy use, which Defendant did not dispute. Georgia Supplier thus billed Defendant $40,200 for the depreciated value of the equipment.  No surprise, Defendant did not pay this either.

Monday, June 4, 2012

Smooth Move

By Nicole Killoran

State v. Kolibas, 2012 VT 37.

Today’s case illustrates the difference of perception, the need for proof by the State, and the obligation of the court to hold the prosecution to that standard.

Defendant’s daughter had her teenage friend over one night for a sleepover.  Defendant decided to whip up a batch of smoothies as a delicious after-dinner treat.  However, Defendant was apparently concerned for his wife’s stress level, and decided to quietly pepper his wife’s drink with an Ambien and half a Valium.  Unbeknownst to Defendant, his wife, disinterested in her fruity drink with a hidden side of stress-relief, dumped her share into her husband’s glass.  How the drink got from Defendant’s glass to its eventual recipient is unclear.

No Love for Thy Neighbor’s Logger

By Jeff Thomson

Knappmiller v. Bove, 2012 VT 38 (mem.).

Some cases should never go to trial.  Many disputes are better suited for the mediation table than the court room.  Small disputes between neighbors often belong in this category, because mediation can help maintain neighborly relations and prevent significant legal fees.  Unfortunately, some neighbors are unable to see the forest for the trees. 

Sunday, June 3, 2012

Range of Vision

State v. McCarthy, 2012 VT 34

On a warm day in September 2008 as clouds began to collect and blot out the sun that had dominated the morning, Defendant began setting up a shooting range.  He started by mowing the backyard of his suburban Essex home.  Then he erected targets, creating an area where he could fire from the back of his house without obstruction.  When it was done, he invited friends to join him.  One brought an SKS-style semi-automatic rifle; another, a shotgun.  By all evidence, the party had a good time.  They enjoyed the outdoors and the last bit of warmth from Vermont’s Indian summer.

As evening rolled around, the party began winding down.  It was at that time that police came out the woods, and the party learned that an errant bullet from their range had struck and killed the Neighbor—a beloved St. Michael’s College professor—while he ate dinner with his wife. 

Thursday, May 31, 2012

Old MacDonald Had a Farm (C-L-E, C-L-E)

Every June is the season of re-licensing for approximately 50% of Vermont's lawyers.

That means it is time to get your Continuing Legal Education credits together.

If you are one of the lucky ones looking to re-up for another term, you probably are looking for CLEs anywhere you can get them.

Have we got a deal for you!

On Monday, June 4th at the Capital Plaza in Montpelier, the Vt. Bar Association will be hosting an Agriculture Law Day.  Seven jam-packed hours of CLE credit available on the beautiful banks of the Winooski River.

Check it out here.

Even if you don't need CLEs, you should still plan to attend.

As Vermont's agriculture expands and diversifies, more and more legal issues have begun to arise.

From immigration to property taxes to land use to food labeling, being a farmer is a complicated endeavor where the benefit of counsel is essential.

Come join us, and learn about the issues facing Vermonters who enter the agricultural business or those that simply live next to them.

You will be a better lawyer for it.

Friday, May 25, 2012

Surf’s Up

City of Montpelier v. Barnett, 2012 VT 32.

For 125 years, no one has been permitted to swim, boat, or even approach Berlin Pond.  As Montpelier’s water source, it has been verboten and off-limits to one and all.  In 2009, Defendants against all conventional wisdom began looking into promoting recreation on the pond.  They were arrested and cited by the Montpelier police for kayaking on the pond.  In response, one of the defendants drew up and began promoting an ice fishing derby on the Pond.  He even went and obtained permits from the Department of Fish and Wildlife and the Agency of Natural Resources. 

This was simply too much for the City of Montpelier.  No one swims in their water, and they were not going to stand for this persistent, quixotic protest against public health and decency. 

Then something went wrong.  The City, like that proverbial emperor, had no clothes, and now the swim club sign-up sheets have reappeared. 

Twelve Bar Supplemental Blues

Montgomery v. 232511 Investments, Ltd., 2012 VT 31 (mem.).

If you practice land use law in Vermont the phrase Stowe Club Highlands acts like a CIA sleeper agent’s trigger and will cause you to automatically rattle off the three conditions that allow you to alter an existing permit (unanticipated change in law or fact, unanticipated change in conditions, or changes in technology). 

If you don’t, the phrase probably conjures up the image of a yuppie playing the bagpipes in front of a ski lift.

Unconditional Surrender

In re Pellenz, 2012 VT 39 (mem.).

Today’s case is a whole four paragraphs.  I will try to be shorter.  Respondent was an attorney in New Hampshire with a license in Vermont.