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.