Sunday, December 28, 2014

Incarceration Implied

State v. Breer, 2014 VT 132 (mem.)

By Andrew Delaney

Some practitioners call a hold-without-bail order “HWOB.” The first time I saw this acronym, my reaction was “WTF is an H-wob? Do I even want to know?” As it turns out, it’s one of those family-friendly acronyms that doesn’t have its very own Urban Dictionary entry—kind of disappointing, really.

Our protagonist, Mr. Breer, “faces several misdemeanor and felony charges in five separate dockets.” He moved to review a hold-without-bail order; the trial court denied the request, and Mr. Breer appealed.

The SCOV (or more accurately a three-justice panel of the SCOV) notes that Mr. Breer has a significant criminal history, including a number of felony convictions. He’s currently charged with two counts of second-degree aggravated domestic assault, one count of second-degree unlawful restraint, and two counts of sexual assault. Along the way he picked up a couple probation violations.

Saturday, December 27, 2014

Once, Twice, Three Times a DUI?

State v. Wainwright, 2013 VT 120

By Andrew Delaney

So this case is about a year old. Actually, as I write this, it’s a week past its first birthday. Sometimes “we” take a little while to get around to doing things. Just ask my wife about the “temporary” carpeting that resided in our entryway for nearly six years.

But this isn’t a case about carpeting; it’s a case about DUI and prior convictions and whether the same prior conviction can be used to criminalize a refusal to submit to an evidentiary test and to enhance the penalty for the refusal. The SCOV says it can.

Here’s the setup. One statute generally provides that if one has previously been convicted of DUI, it’s a crime to refuse a law-enforcement officer’s reasonable request for an evidentiary test. Another statute, again, generally, provides an enhanced penalty for second and subsequent DUIs.

Thursday, December 18, 2014

Aesthetics Arguments

In re Goddard College, 2014 VT 124

By Elizabeth Kruska

Goddard College wants to build a woodchip heating system to replace its old system. Goddard’s neighbor thinks the plant will ruin the aesthetics of the area and wants to use Act 250 to make Goddard put the chip plant somewhere else on its property. Hey, I get it. Nobody wants to look out their kitchen window at what used to be a nice view of a mountain or a lake and see a power plant instead.

Part of the Act 250 permitting process requires that the aesthetic impact of a project be considered. If there is going to be an adverse aesthetic impact, there then has to be a consideration of whether it’s an undue impact. That is, whether the impact violates a clear, written standard meant to preserve the aesthetics of an area or whether the project offends the sensibilities of an average person. Plopping a giant industrial park in the middle of a historic neighborhood might be such a thing.

Monday, December 15, 2014

Development Disagreement

Highridge Condominium Owners Association v. Killington/Pico Ski Resort Partners, LLC, 2014 VT 120

By Elizabeth Kruska

When I was a junior in college, my dad asked me what classes I planned to take one semester. I told him I needed to find a social science course that fit my schedule and was interesting to me. He told me to take meteorology. I was confused for a second, since meteorology is a physical science. Without skipping a beat, my dad said, “of course meteorology is a social science. Get 2 people in a room together and they’re going to talk about the weather.” Ba-dum-bum. Everyone’s a comedian.

As true as it is that people will always talk about the weather, it is equally as true that people involved in condo associations will disagree about something.

Here, a group called North Ridge created a condo association called Highridge (this gets confusing with all the ridges) in 1983 in the Town Formerly Known As Sherburne. I didn’t know Sherburne changed its name to Killington in 1999 until I read the footnotes in this case. The things you learn in footnotes!

This Litigation Goes to Eleven . . . Days of Trial, That Is

Ring v. Carriage House Condominium Owners’ Assoc., 2014 VT 127

By Elizabeth Kruska

This case has to do with a “longstanding feud” (SCOV’s actual description of the situation) between a condo association and one of the individual property owners in the association. For those who have never lived in a condo association, lemme tell you, feuds are de rigeur in such associations. In fact, I wouldn’t be surprised if some had a clause in their bylaws requiring that there must be one or more ongoing feuds between various owners and the association at all times.

There are five different players in this case: Plaintiff Ring and the four defendants including the Association, Maroldt, Morrison, and Beck. Morrison and Beck were married; Mr. Morrison died.

Here’s the story. Way back in 1996, Ring buys two unfinished condo units in a building. There was an issue about development rightshe paid for the ability to develop without permission of the Association, although the neighbors thought the Association had to okay it. In any case, Ring got a permit to do some development, and the Association sued him. But he applied for a permit, and the permit was approved, so he started doing construction.

Saturday, December 13, 2014

Trees, Trucks, and Trouble

State v. Hinton, 2014 VT 131

By Andrew Delaney

Losing one’s driver’s license is a big deal—especially in Vermont. Public transportation is pretty much nonexistent and hitchhiking to and from work can get old in a hurry. So, if there’s a shot at getting a DUI tossed based on an unlawful seizure or some other violation, most people will take it.

At first I thought the defendant in this case might be Unknown Hinson, which would’ve been an interesting twist, but alas, we’re one letter off. So we probably won’t get a psychobilly ballad about trucks, trees, and troopers to accompany this opinion.

It all started with a tree. In late December of last year, the tree broke off about fifteen feet above the ground and partially blocked a roadway. An officer responded to the scene, decided the tree was a danger, called the highway crew, and drove a mile or two back to an intersection to (allegedly) warn drivers of the danger if they were headed up the road.
 

Sunday, December 7, 2014

Great Guilt?

State v. Theriault, 2014 VT 119 (mem.)

By Andrew Delaney

I don’t think “whether the evidence of guilt is great” is the best phrase to use in the criminal context. But it’s the phrase that’s used.

Mr. Theriault was charged with second-degree murder of two-year-old Jamaal (Munyon) Turkvan. The trial court held a weight-of the-evidence hearing, and determined the evidence of guilt was great. Mr. Theriault was held without bail under the statute that allows a defendant to be held without bail when the evidence of guilt is great and the offense charged is punishable by life imprisonment. He appeals.

The SCOV notes that the trial court hasn’t yet made a discretionary determination regarding whether Mr. Theriault should be released on conditions or whether he should continue to be held without bail, so the only issue on appeal is whether the evidence of guilt was great, or as I would phrase it, whether the evidence strongly indicates guilt. Alas, I don’t run the world . . . yet. 
 

Wild Water

Langlois v. Town of Proctor, 2014 VT 130

By Andrew Delaney

In the spirit of Félix Fénéon’s Novels in Three Lines: Potentially negligent landlord wins suit against town for town’s negligence without mention of her potential negligence and the SCOV reverses.

Of course, there’s a little more to it than that. Basically, plaintiff-landlord didn’t pay her water bill. She made some kind of an agreement with a town representative to shut the water off so that she wouldn’t incur any more charges. The town didn’t shut off the water, but landlord thought the town had. Landlord stopped heating the building. The pipes froze and burst, bada-bing, bada-boom, and in the words of Samuel Taylor Coleridge, “Water, water every where, Nor any drop to drink.”

So, landlord sued and made it to trial on negligence and breach-of-contract claims (consumer fraud and negligent misrepresentation got the boot on summary judgment). The jury found town negligent and awarded plaintiff almost $65K. The trial court didn’t give a comparative negligence instruction. Oopsie.

Tuesday, November 25, 2014

Deck, Deck, Use

In re Carrigan, 2014 VT 125

By Elizabeth Kruska

One of my favorite songs is “Go Back To Your Trailer” by the brilliant young country singer/songwriter Kacey Musgraves. The chorus goes (in part):
Keep your two cents
On your side of the fence
Girl, we ain’t friends, we’re just neighbors
This reminds me of a lot of the permitting and zoning dispute cases we read from SCOV, although the case opinions tend to be more full of words and less full of slide guitar. (Note to SCOV: more slide guitar, please. Although, I’m not sure how to make that happen.)

Anyway, as best as I can tell, this is the problem faced by the Carrigans. They bought a camp on or near Lake Champlain in the town of Addison sometime during the Reagan Administration. The camp is located fully within 100 feet of the shoreline, and under the Town’s bylaws, is a “nonconforming structure.” Whether the camp was there first or the rules were there first, I’m not sure. I’m guessing the camp predates the bylaws.

Sunday, November 23, 2014

Bail, Brought Back, Briefly

State v. Campbell, 2014 VT 123 (mem.)

By Andrew Delaney

Last round, Mr. Campbell got the SCOV to order an immediate bail-review hearing. This round, Mr. Campbell doesn’t fare so well.

As you may or may not recall, Mr. Campbell was charged with violating his probation. The underlying charge was violation of an abuse prevention order. When, months later, a different complainant applied for and was granted an abuse-prevention order, Mr. Campbell was charged with violating his probation. He was arraigned and ordered held without bail, which means he ended up in some state-subsidized Hotel California style housing. When he asked to review bail, the trial court just said that it had explained why he was going to be held without bail at arraignment and that was that.

So he appealed, and if you’re a regular reader, you know what happened: the SCOV ordered an immediate bail-review hearing. Here’s a link for you slackers.

Money Can’t Buy Me Love

Goodrum v. Vermont Dept. of Taxes, 2014 VT 128

By Andrew Delaney

But its pursuit can help qualify one for a tax exemption. Also, if I was a pirate I’d want my last name to be Goodrum, but that’s neither here nor there.

The Goodrums own just over 40 acres, and all but two acres is enrolled in Vermont’s Use Value Appraisal Program. The two acres at issue (presumably) house Turtle Hill Farm, a nonprofit corporation operating an animal sanctuary, funded almost entirely by donations. The Goodrums started Turtle Hill in 2008, and they provide most of the donations. The Goodrums lease four barns and two sheds to Turtle Hill for the taking-care-of-the-rescued-animals thing.

A few years back, the Goodrums applied to enroll the leased-to-Turtle-Hill sheds and barns in the Use Value Appraisal Program (UVA), which would exempt the buildings from property taxes. The Vermont Department of Taxes’ Division of Property Valuation and Review (PVR for short) found that the buildings were ineligible. The Goodrums appealed to PVR’s director, who found the same. The Goodrums then appealed to the superior court, and both parties went for summary judgment. PVR got it, with the superior court ruling “that the buildings are not eligible for enrollment because [Turtle Hill] does not operate for gain or profit” and doesn’t meet the statutory definition of farmer.

Tax law is weird. 

Friday, November 21, 2014

Slut Shaming: Don’t Do It

State v. Groce, 2014 VT 122

By Elizabeth Kruska

Sometimes SCOV takes an entire paragraph to call out some bad behavior. This is one of those times. Good on you, Chief Reiber. It’s not cool to call someone a slut. Just don’t do that. Don’t.

The thumbnail version of the story is this. Complainant (not Slut, as perhaps the State’s Attorney would prefer she be called) and her boyfriend Jason went out for drinks in downtown Rutland, and then ended up at a party at the home of some friends. Complainant and her boyfriend got into an argument because he was talking to other people at the party. He decided to cool off and walked home, leaving her there.

After he left, she went into a bedroom and made some phone calls, and then fell asleep. Her story is she woke up later to find a man who she did not know, performing oral sex on her. According to her she got up, ran into another bedroom and told the people at the party what happened. Then she got a ride home and her boyfriend took her to the police station and the hospital.

Friday, November 14, 2014

Intervention

Kevin Barrup (Marilyn Barrup, Intervenor) v. Tammy Barrup, 2014 VT 116

By Elizabeth Kruska

Normally, we pare down the case name to its bare necessities, but with this case the long form seemed, you know, appropriate.  Now, before anyone makes a “meddling mother in law” or “helicopter parent” comment, let’s start with Justice Skoglund’s concurring opinion to explain why we even are where we are.

It’s really really rare that a third party can intervene in a divorce case. Generally speaking, spouses have the right to fight their own battles when they get divorced. If courts let third parties in as intervenors with any regularity, already-acrimonious situations could get completely out of control with all sorts of third parties wanting to get involved, court-wise. Justice Skoglund made a nice 5-point test to help figure out if someone could properly intervene in a divorce.

Even then, if a third party can intervene, it doesn’t mean they should or that the court should let them. The scope has to be really narrow and really limited. If a third party has a property right that is somehow going to be infringed upon as a result of a divorce order, then it is possible the third party could intervene to make sure his or her property rights are preserved. Due process and all that good stuff.

Sunday, November 9, 2014

Duty to Defend

State of Vermont v. Prison Health Services, Inc., 2013 VT 119

By Elizabeth Kruska

On August 14, 2009, a young woman reported to serve a jail sentence at Vermont’s correctional facility in Swanton. On August 16, 2009, she died. It came to light that she had a medical condition that required her to have potassium supplements, and that she didn’t get them while incarcerated.

This case isn’t exactly about that, though. It’s about whether Prison Health Services (PHS), the contract health provider in 2009 has a duty to defend the State in the lawsuit that followed, relative to this young woman’s death. The trial court said no. SCOV disagreed.

Here’s why. Vermont has some prisons within the State. When people are imprisoned, they’re in the custody of the State. The State has the duty to provide appropriate shelter, nutrition, and care for those people. Just because people ended up in jail for whatever reason doesn’t mean the State can mistreat them when they’re there. The shelter part is easy; Vermont owns the prisons and maintains them (I’m sure to what degree would be debated by those who’ve spent time there, but that’s not really the point here). The nutrition part isn’t that hard, either (ditto). The care part gets a little tricky, though.

Sunday, November 2, 2014

Indemnity, Insurance, Interest, Interest on Interest, and Iffy-ness

Town of Ira v. Vermont League of Cities and Towns, 2014 VT 115

By Andrew Delaney

You can smell dusty law books when you read this opinion. It even feels a little like law school. Let me break it down for you.

Town bought a policy from its insurer, which covered, among other things, embezzlement by town employees. The policy coverage limit was a half-mil. As it turns out, a 2009 audit showed that the long-term elected town treasurer had embezzled over $300K, and the lost interest on that was figured at $346.4K. So town gets a judgment against treasurer just north of a $1.1M (there were other things goin’ on for those keeping score at home).

When town put in a claim with insurer, insurer paid, but paid only the amount actually taken, not the interest. Town sued for the difference and the trial court—on cross motions for summary judgment—held that the town could recover lost interest in addition to the amount actually embezzled. Town’s argument was that the policy should cover the “time value” of the money taken and the trial court agreed. The trial court figured that got to the policy limit, and kind of booted town’s claim for audit and attorney’s fees, town’s bad-faith claim, and insurer’s counterclaims to recoup already paid sums.

Monday, October 27, 2014

Bail, Briefly

State v. Campbell, 2014 VT 113 (mem.)

By Andrew Delaney

Those of you that read a lot of SCOV opinions know all about the “rocket docket” opinions. (This is also a sure sign that you need to get out more.) They’re usually written by a three-justice panel and emblazoned across the top there’s a big ol’ warning that reads: “Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” Yep, it’s in italics too. Now, when I saw that the SCOV had begun this opinion by citing an unpublished memorandum opinion, I had a “gotcha” moment. I looked up the opinion, and lo and behold, it’s a four-justice opinion with the warning conspicuously absent. So there goes my whole goose-gander analogy.

At any rate, Mr. Campbell was on probation, got charged with violating it, and went directly to jail. He did not pass GO; he did not collect $200. He was held without bail. Though his merits hearing on the violation began a few weeks later, it didn’t finish and the continuation of the hearing was scheduled out about a month-and-a-half later. Mr. Campbell filed a motion to review bail in the meantime and the trial court more or less said, “Nope, already explained all that at arraignment. And the motion doesn’t change anything.”

Errors: Sometimes They’re Harmless

State v. Wilt2014 VT 114

By Elizabeth Kruska

On the day after Christmas in 2011, Maureen Wilt invited her neighbor over for dinner. They cooked, they had wine, they ate, and when they were done, Mr. Neighbor (we don’t know his name) went on his merry way back home. Then Maureen called up another friend of hers, maybe around 8:00. The facts of this are a little confusing, but it seems like Maureen wanted to go visit the friend but he didn’t want her to come over. She showed up anyway, knocked on the door, and somehow ended up falling down a flight of stairs, hitting her head, and becoming unconscious. The friend, Mr. Rondeau, asked his son to call 911I’d assume because there was an unconscious, bleeding lady in his basementand before help arrives, Maureen gets up and drives away. Mr. Rondeau thought her driving seemed fine.

If I may interjectunconscious and bleeding while lying at the foot of a flight of basement stairs seems a little inconsistent with competent driving ability a few moments later. I’d have been concerned with that, but perhaps they weren’t able to stop her from driving. I don’t know.

Tuesday, October 21, 2014

What We Talk About When We Talk About Due Process

Hogaboom v. Jenkins, 2014 VT 11

By Andrew Higley

In the most recent installment of delinquent-tax-sale gone wrong, SCOV makes sure to put the “due” in “due process.” The question in this case is the classic procedural conundrum of how much process is due. The Court’s answer: quite a bit. SCOV held that when a notice of tax sale is sent with return-receipt requested, and is returned to sender unclaimed, due process requires a little extra push in order to be sufficient. Also, that process is due before the tax sale itself, and not anytime before the ultimate transfer of title. Result for the unfortunate buyers in this case: instead of getting a bargain-basement deal, plaintiffs bought themselves a lawsuit.

Deprivation by the State of a person’s life, liberty, or property requires due process, which even property owners who don’t pay taxes are entitled to. The reason? Evade the taxman long enough, and a town can sell your property through an auction to satisfy any delinquencies, a.k.a. "tax sale." In a case of great significance to these sales, SCOV set out to answer, how much process is the defendant due? And, when is it due? 

Sunday, October 19, 2014

In Burlington, Vermont, Single-Family Dwelling Lot Subdivides You

Regan v. Pomerleau, 2014 VT 99

By Christopher A. Davis

Landowner wishes to add apartment to single-family home in Burlington, as well as subdivide the property into two lots. Predictably, lots of folks get upset about it, cases proceed to both Chittenden Civil Division and the Environmental Division, courts say, “You’re good, go for it,” everyone is still upset, appeals follow to the SCOV, SCOV says “Nah, you’re still good, go for it.” The end.

But let’s dig deeper for purposes of this qualifying as a helpful summary. Overlake Park Development Corporation creates the lot at issue in 1955. In 1961, the lot is sold to DeForest Reality with a covenant restricting use to “one dwelling for a single family dwelling unit.” By its terms, covenant expires in 1995. In 1965, DeForest sells lot in question to the predecessor-in-interest of landowner (let’s call landowner “applicant” from now on). In 1987 applicant purchases home and lot.

Friday, October 17, 2014

Truthiness

State v. Felix, 2014 VT 68

By Elizabeth Kruska

If cleanliness is next to godliness, then truthfulness must be right up there, too. When witnesses go to court to testify they raise their right hands and swear to tell the truth, so help them God.

All we have when witnesses swear to say what’s true is their oath that what they’re saying is true. But sometimes witnesses don’t exactly have truth-telling as a high priority. (Ha! Puns! See below.) You see, people will sometimes choose to say something other than what’s true if it means serving his or her own ends. How many kids have told their parents they’re going to the library when they’re really off to do something infinitely more fun? (Answer: all of them)

Sometimes the truth is far more serious though, like in a felony trial when the only people who know what happened are the defendant and a witness. That’s what happened in this case.

Hodgepodge

CitiFinancial, Inc. v. Balch, 2013 VT 86

By Elizabeth Kruska

As mundane as a mortgage feels, it’s a big responsibility. It’s the securing of debt to land. Land is expensive because it’s finite. In the wise words of Tony Soprano, “God ain’t makin’ any more of it.” Not everybody can pay the full amount of the purchase price in cash, so they’ve got to borrow money from a bank. If they can’t repay the money, the bank can come in and foreclose on the land.

Sometimes people who have land or who want land also have guardians to help with their affairs. SCOV takes a pretty clear stand in saying that the Vermont guardianship statutes are a bit of a mess. They use the word “hodgepodge.” That can’t be good. We had some statutes, and they got revised, but that might have made things more confusing. There’s also a rogue outlier guardianship statute about mortgages that’s not even in the same chapter.

The long and short of it, though, is that a guardian is charged with the duty to act in the ward’s best interest (I know it’s called a “person in need of guardianship” now, but that’s too long to type and “PING” seems confusing when “ward” is the word we all already know). The guardian’s powers are set forth by the probate court. They can be limited to certain powers or they can include a whole range of powers. The point is that the powers are specified by the court and tell the guardian what he or she is allowed to do. Or not do.

Saturday, October 4, 2014

You Can Keep Your Genes On...

State v. Medina, 2014 VT 69

By Hannah Smith

In a landmark decision, the SCOV has deemed a section of Vermont’s DNA collection statute to be an unconstitutional invasion of personal privacy under the Vermont Constitution. The section of the statute at issue amends 20 V.S.A. § 1933(a)(2), and mandates DNA collection and analysis from anyone arraigned for a felony. In several recent trial-court cases, criminal defendants challenged the constitutionality of the amendment. The trial courts hearing those cases found, across the board, the language at issue to be unconstitutional. In this consolidated appeal, the SCOV affirmed the rulings of those trial courts, finding the recent amendment to be in violation of the Vermont Constitution. Take that privacy-rights infringers!

As a point of (significant) interest, the U.S. Supreme Court was faced with a similar case last year, and found warrantless, suspicionless DNA collection from individuals arrested for violent crimes or burglary to be perfectly legal under the Fourth Amendment of the U.S. Constitution. From the outset, the SCOV makes very clear that its ruling only pertains to the statute’s constitutionality under Article 11 of the Vermont Constitution, which has been found to provide greater protection than its federal counterpart. In addition to the heightened protection provided by the Vermont Constitution, the SCOV also found the statute in this case differed substantially from the Maryland DNA-collection statute on which the SCOTUS ruled. 

A Question of Character

In re Katherine Pope, 2014 VT 94

By Timothy Fair

How important is the character of the individual representing your legal interests?

When most people think about the arduous journey of becoming an attorney, the first hurdle that leaps to mind is the dreaded bar exam. Lesser known to the general public are the understated, but arguably more important, requirements of character and fitness. While each state has its own ideas as to what constitutes “good character,” honesty, integrity, and candor to the tribunal are pretty much universally accepted as essential personality traits for any would-be barrister. In this case, we have a unique opportunity to see precisely why this is. As an added bonus, we also get the chance to see firsthand that what constitutes really bad decisions for an attorney in New York also constitutes really bad decisions for the same attorney in Vermont.

At issue is whether the Vermont Supreme Court should impose the identical two-year suspension from the practice of law that was levied against the respondent by the State of New York. Before we can address this question, however, a little background is necessary.

Saturday, September 27, 2014

Domicile Detention Denied

State v. Pelletier, 2014 VT 110 (mem.)

By Andrew Delaney

Mr. Pelletier just wants to go home. Unfortunately for Mr. Pelletier, he stands charged with first-degree murder.

As you may recall from another recent case involving the pretrial home detention statute, home confinement is allowed when a defendant is held in a “lack of bail” situation for more than seven days. There are three areas for a trial court to consider in determining whether to grant such a motion: (1) the offense’s nature; (2) prior convictions, history of violence, medical and mental health needs, supervision history, and risk of flight; and (3) risks or undue burdens associated with the placement.

Mr. Pelletier filed a motion for home confinement, proposing that he live at home and work on his 140-acre family farm. The trial court wasn’t sure that was such a hot idea because the GPS-monitoring system might not work with that large of an area.

Friday, September 26, 2014

Water, Water Everywhere

City of Newport v. Village of Derby Center, 2014 VT 108

By Elizabeth Kruska

Remember that opinion from a few months ago about the wastewater issue in the Village of Derby Center? Well, this seems to be its late-to-the party cousin, and might explain a little more about the water woes going on in the Northeast Kingdom. It’s a water-in, water-out problem.

In 1997, the Village of Derby Center (hereinafter: Village, because, why not) made a contract with the City of Newport (hereinafter: City, because, same reason) stating that Village would provide City with 10,000 gallons of water per day. All was super and swell until 2006, when Village adopted a new rate schedule pursuant to an ordinance that allowed Village to charge for not only water used, but also a “ready to serve” fee. Let’s not confuse that with the Little Caesar’s Pizza “hot and ready” cheap pizza deal, because water and pizza are two very different things.

Anyway, the point is that City, after nearly 20 years of paying for just water used, was not amused at Village’s 30% rate hike. City paid the increased fees under protest. There were some other issues that arose, like an inaccurate meter, and City hooked up some water users without notifying the Village. 

Partition Problem

Currie v. Jané, 2014 VT 106

By Elizabeth Kruska

Janet Currie and Paul Jané met in 2002, fell in love, and decided to buy a house. Janet rented an apartment in a house in Orwell. She arranged with the property owners to buy their house. Paul’s mom gave him $200,000, which he used to put toward the purchase of the house, and he also paid some closing costs. Janet arranged with the homeowners that they would do a private mortgage for $45,000, and that Janet would pay them back. Janet and Paul bought the house as joint tenants with right of survivorship.

They also agreed, in writing, that Paul paid the $200,000 and closing costs and that Janet was solely responsible for the $45,000 mortgage debt. Later on, they took out a home equity loan, which they used to pay off some cars and other expenses. Paul paid that back. Paul also did some pretty significant work on the house and land.

You probably see where this is going.

Not Cruel, Not Unusual

In Re Stevens, 2014 VT 6

By Merrill Bent

Today’s petitioner is not so good at murder. Unfortunately for him, his status as an unsuccessful killer does not really bring him any perks, except maybe "three hots and a cot" and an hour in the yard.

Petitioner was convicted of attempted first-degree murder, two counts of aggravated assault, kidnapping, burglary, and violating an abuse-prevention order after he broke into his ex-girlfriend’s hotel room and attacked her and her boyfriend with a hammer before attempting to drag the ex to a van with the intent to restrain her inside and set the van aflame. Fortunately, some neighbors intervened, and were able to subdue and restrain the guy before he could execute his plan.

The trial court sentenced petitioner to life in prison without the possibility of parole. At the sentencing hearing, the court took into consideration petitioner’s mental health and childhood trauma on the one hand, but on the other, that he had previously shot at his ex-wife and children when he learned that she wished to end the marriage. The trial court also pointed to the brutality with which petitioner planned to kill his ex girlfriend and concluded that petitioner should be deprived of the chance to hurt anyone else. The sentence was upheld upon petitioner’s direct appeal. 

Sunday, September 21, 2014

Tricky Tacking

Parker v. Potter, 2014 VT 109

By Andrew Delaney

Adverse possession is an odd legal beast. Basically, it’s the law’s way of saying “if you liked it, then you should have put a ring on it.” Quite often, its application turns on what the previous owners of property did or didn’t do. Sometimes, as with a very recent case, it turns on what a previous owner was or wasn’t.

Plaintiffs claimed they’d adversely possessed “several strips of land adjacent to their property: a triangular area used for parking, a small grassy knoll, and a narrow strip of land on the eastern side of the roadway leading to plaintiffs’ house.” So, how’d all this come about? I’m so glad you asked.

Appreciation for Depreciation: Part Deux

Vermont Transco LLC v. Town of Vernon, 2014 VT 93A

By Andrew Delaney

We reported on the original decision in this case three weeks ago. With this entry order and opinion, the SCOV grants "appellant’s request to amend the opinion and extend[s] the remand for further findings on the first-year depreciation issue." 

Major differences to note: (1) the opinion changes from a Justice Crawford decision to a per curiam (by the whole court) decision; (2) ¶¶ 20-22 completely change the tune from a no-abuse-of-discretion-when-the-state-appraiser-accepted-the-Town's-evidence approach to a we-need-some-findings-to-review-this-piece-and-there-aren't-any-findings-so-the-state-appraiser-had-better-make-some-on-remand approach. 

That's really all there is to it.  Other than a few words changed here and there to deal with the inclusion of the first-year-depreciation issue, the opinion, concurrence, and dissent are the same as before

Saturday, September 20, 2014

Professional Punishment Procedure

Shaddy v. State of Vermont Office of Professional Regulation, 2014 VT 111

By Andrew Delaney

This case gets into professional regulation’s procedural quirks. As one might suspect, when the SCOV has to get into such things, it’s a wee bit of a mess.

Mr. Shaddy was a nurse who was accused of diverting narcotics. He entered into a consent order suspending him from practice. Read all about that and its progeny here, here, and here. The whole thing started with Mr. Shaddy’s former employer reporting its suspicions to the Board of Nursing. The Board then referred the matter to an Office of Professional Regulation (OPR) attorney to bring summary suspension proceedings and the Board, along with the OPR attorney, investigated the complaint.

So that previously noted consent order was entered. In it, Mr. Shaddy didn’t admit liability, but he conceded that the State could prove its case by a preponderance of the evidence. At the time, Mr. Shaddy was represented by counsel. A year later, however, Mr. Shaddy filed pro se to vacate or amend the judgment on the basis that he didn’t do it and his lawyers pressured him into entering into the consent order. He included a packet of supporting materials. The OPR attorney opposed the motion.

Friday, September 19, 2014

Trial Court, Fire Up Your Calculator

Meyncke v. Meyncke, 2013 VT 82

By Elizabeth Kruska

There’s kind of a whole lot going on in this case. Husband and Wife got divorced in 2007. The Court split the property evenly, including Husband’s 401(k). The Court also ordered that Husband pay Wife $6390 per month for 13 years. That’s a million dollars. If I had a million dollars I’d buy you a fur coat. (But not a real fur coat. That’s cruel.)

The thing about 401(k)s is that you can’t just break them in half, like a cookie. There are potential tax problems, so if they’re not divided appropriately, someone could get really jammed up with a tax problem. If parties are going to split up retirement accounts in a divorce, they have to file what’s called a qualified domestic relations order (QDRO, pronounced “quadro”).

The divorce order was final on October 26, 2007, and in the order the court required Husband to file a QDRO. As of November 9, 2007 (10 days under the rule for computation of time), husband hadn’t filed that yet. Wife, on the other hand, filed a motion to alter or amend the final order. That order kicked around the court for a while, and on December 28, the judge ordered the parties to get together and make a QDRO. The motion was denied on January 25.

Sunday, September 14, 2014

Nasty Nominal

Evans v. Cote, 2014 VT 104

By Andrew Delaney

This is a case where $1 in damages carries a $22.4K attorney’s fees kicker. How the heck does that happen?

Vermont has a few statutes that apply to messing with somebody else’s trees. One of these statutes authorizes treble damages (as a musician, I think “triple” is a far-more-appropriate term, but nobody asked me); the unlawful mischief statute provides a potential route to attorney’s fees.

The parties have been neighbors since 1980. They’ve never agreed as to where the boundary line between their properties was, and they’ve been feuding about it for some time. Defendant’s deed said the middle of a discontinued road and plaintiff thought the entire road was his. Plaintiff got a default declaratory judgment against defendant in 2007, which defendant later unsuccessfully tried to have vacated.

Where a Change in use Makes no Difference

In re Burlington Airport Permit, 2014 VT 72

By Jeffrey M. Messina

This appeal comes from a grant of summary judgment in favor of the Cities of Burlington and South Burlington by the Superior Court Environmental Division. The Environmental Court upheld the South Burlington Zoning Administrative office’s issuance of 54 zoning permits to the City of Burlington and Burlington international Airport (BTV) (together, Applicants) and concluded the Applicants were not required to submit a site plan for zoning board approval.

Each permit allowed BTV to demolish, remove, and fill in the cellar holes of the vacant structure on BTV-owned property. Neighbor contends the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington (SoBu) Land Development Regulations (LDR). 

At its very core the controversy is about noise: airport-generated noise and its effects on immediate neighbors.

Saturday, September 13, 2014

Rolling Stone

Stone v. Town of Irasburg, 2014 VT 43

By: Jeffrey M. Messina

Plaintiff, the Treasurer of the town of Irasburg, sued the Town claiming the Select Board acted unlawfully in ordering her to raise her bond to $1 million then preventing her from doing so. She sought damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process.

Plaintiff was elected Treasurer of the Town of Irasburg, and almost immediately tension developed between her and the Select Board. About a month into the position, a member of the Board proposed the town's auditors should perform an audit every two weeks for the first two months of plaintiff’s term, and every month thereafter during the time she holds the position. After the first audit, the auditors told the Board they were unable to balance the books due to several mistakes in the reports submitted by plaintiff.

This is Never Funny

In re Smith, Esq., 2014 VT 77 (mem.)

By Jeffrey M. Messina

The usual wit and banter is laid aside here. Regardless of the reasoning, the outcome is nothing to laugh about.

In June 2014, the Vermont Professional Responsibility Board recommended disbarring the Respondent effective as of a previous date of suspension approximately a year prior. Respondent did not appeal and SCOV, by its own motion, declined review.

A Little Late to the Party

In re Babson, 2014 VT 105

By Andrew Delaney

The SCOV seems angry in this opinion—almost like the words are bright, flaming, candy-apple-red angry. Hell, it makes me feel like I’ve done something naughty just reading it.

Petitioner filed a second post-conviction relief (PCR) petition, in an attempt to reinstate his appeal from his first PCR on the ground that his court-appointed counsel failed to file a notice of appeal. “The trial court dismissed petitioner’s request, concluding petitioner had no constitutional right to counsel in his PCR.” In a limited manner, the State supports petitioner’s request. It’s sort of left-handed support—I’m left-handed so I can say that—but it’s support nonetheless.

Friday, September 5, 2014

Give Credit Where It’s Due

State v. Perry, 2014 VT 102

By Elizabeth Kruska

You know what’s confusing? Corrections math! It’s confusing because sometimes people have different sentences and they work together in different ways and sometimes they get credit toward their jail sentences and sometimes they don’t, and the trick is to know what goes where. It’s a talent to figure this stuff out, really.

Here’s the story with Mr. Roger Perry. Two separate burglaries happened; one in December 2010 and one in January 2011. For whatever reason, Roger didn’t get charged with those offenses until February 2012. He entered into a plea agreement in June 2013 and then got sentenced to the burglary charges in July. The sentence he got was 3-15 years all suspended but 6 months to serve. This means he’d have to go to jail for 6 months and then be on probation. If he violated his probation, he could have to serve the balance of the 3-15 years in jail.

Sunday, August 31, 2014

Thanks for Nothin'!

Ainsworth v. Chandler, 2014 VT 107

By Andrew Delaney

In the usual course, a defendant is thrilled when his insurer steps in and gets the case against him tossed on summary judgment. This case is different.

Boyfriend and girlfriend met up at the office for boyfriend’s electrical business. When they went to leave, girlfriend allegedly tripped over a coil of wire left by the stairway and was injured. Sometime later, boyfriend sued his insurer for bad faith, and insurer counterclaimed for noncoverage. Then girlfriend filed suit against boyfriend while the other suit was pending. The trial court granted summary judgment to boyfriend and dismissed the girlfriend-boyfriend personal-injury suit, finding that girlfriend was a licensee and not a business invitee, and thus, defendant didn’t breach any duty of care. Because the underlying personal-injury claim was dismissed, the trial court also ruled in favor of insurer in the other case, concluding no coverage was owed.

Let’s play Can You Spot the Error? Here’s a hint.

Saturday, August 30, 2014

Technical Tolling Trouble

Mahoney v. Tara, LLC, 2014 VT 90

By Andrew Delaney

As Yogi Berra is rumored to have said, this case is “like déjà vu all over again.”

Back in 2011, the SCOV sent this case back to the trial court for factual development. Plaintiffs’ family had been renting a lakeside property since 1949 and bought it in 1979. From 1958 until 2006 Vermont Catholic Charities (VCC) owned the adjacent lot. In 2006 defendant Tara LLC bought the VCC lot. When Tara decided to subdivide its lot, it included a survey that purported to cut plaintiffs’ beach in half.

Plaintiffs filed to quiet title in late 2007, arguing that they had adversely possessed the at-issue land, and defendant moved to dismiss in early 2008, arguing that the statutory-based charitable-use exemption to adverse possession applied while VCC owned the property, so plaintiffs couldn’t adversely possess the property. The trial court granted the motion and plaintiffs appealed. You know how that story ends.

Appreciation for Depreciation

Vermont Transco LLC v. Town of Vernon, 2014 VT 93

By Andrew Delaney

I’ve never developed a taste for property tax law. But this case seems like it might’ve been interesting to litigate. The actual real property involved is worth but a very small percentage of the total assessment. This is almost all about the equipment and lines.

Taxpayer owns “five electrical substations, seven transmission lines, a fiber-optic line, land, and utility easements located within the Town of Vernon.” The town listers valued the property at $92 million and change. Taxpayer appealed to the Board of Civil Authority, which upheld the valuation. Taxpayer then appealed to the state appraiser. 
 

A Scrap over Scrap

In re All Metals Recycling, Inc., 2014 VT 101

By Andrew Delaney

My favorite land-use acronym, which one of our writers noted some time ago, is BANANA-NIMBY: “Build Absolutely Nothing Anywhere Near Anything, and most certainly Not In My Back Yard.” I don’t know its specific origin, but I think it’s funny.

This particular land-use kerfuffle arises from the environmental division’s “grant of a discretionary permit to All Metals Recycling, Inc., to establish an outdoor storage area and install a scale and scale house.” In essence, this permit allowed All Metals to keep on doin’ what it was doin’—it had already built the scale and scale house that the permit authorized. There’s also a dispute over a proposed parking plan thrown in for good measure.

Friday, August 29, 2014

Once, Twice, Three Times a Prosecution

State v. Porter, 2014 VT 89

By Merrill Bent

This case demonstrates just how the intricacies of the Rules of Evidence can trip up experienced litigators and trial court judges alike, yielding an inelegant and clumsy dance through the courts and, at times, a seemingly inefficient path towards justice.

The facts underlying this case involve a harrowing attempted kidnapping in which the victim was attacked by an unknown assailant, who physically assaulted her and tried unsuccessfully to force her into his pickup truck before fleeing the scene. Several eyewitnesses observed the attempted kidnapping, and one was able to offer a somewhat-vague description of the assailant and confirm that the truck had Vermont license plates.

Total Recall. Or not.

State v. Spaulding, 2014 VT 91

By Elizabeth Kruska

When I was in fourth grade my teacher made everyone in the class write in journals for fifteen minutes every day after lunch. I suspect it was so she could build a little peace and quiet into the day as much as it was so we could practice writing. I recently found my journal, and want to share this entry:
Today after science David told me he likes shrimp. So I told him I like shrimp. Then he said, “sit by ya at lunch” so I said “ok.” Then Jessica got mad because I told her yesterday I would sit by her. Jessica sat by Sherry and now they are both mad at me because Sherry doesn’t like David.
What a gem. 

Monday, August 25, 2014

The Return of the Long-Arm

Fox v. Fox2014 VT 100

By Elizabeth Kruska

I love a good long-arm statute. I might need to find a new hobby.

Neal Fox is Eugene Fox’s uncle.

“Plaintiff Neal Fox’s brother adopted Eugene Fox when Defendant was an infant.” This might be factually accurate but it confused the heck out of me. I thought the sentence was about 4 different people. Then I drew a diagram and figured outyep, Neal is Eugene’s uncle. The fact Eugene was adopted as an infant seems a little like how in The Royal Tenenbaums, Gene Hackman’s character always referred to Gwenyth Paltrow’s character as “my adopted daughter.” 

Sunday, August 24, 2014

Cursory Colloquy Can't Cut It

In re Manosh, 2014 VT 95

By Andrew Delaney

Who really knows how these cases are going to end up? Just recently, the SCOV issued a 3-2 decision that seemed to imply that “substantial compliance” with the Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) was good enough.

Not so in this case. Back in the early ‘90s, Mr. Manosh pled no contest to a first-offense DUI. He signed a waiver form that for our purposes here, essentially complies with the Rule 11 requirements. The trial court asked him if he knew what had been said and what was in the documents. He said yes. When the court asked if he had any other questions he said no. That was about the size of it—the court didn’t get into the burden-of-proof thing, the right-to-a-jury-trial thing, or much else. It was basically “Got it? Any questions?”

The Enigmatic Body Shop

State v. Morse, 2014 VT 84

By Ember Tilton

Phillip Morse had a bad daya very, very bad day. For whatever reason, he decided to chase his ex-girlfriend with his truck, pass her and try to block the road. As if that wasn't enough, he then hit her car as she tried to get around him causing damage to her mother's green car.

Now comes the State of Vermont charging Mr. Morse with aggravated domestic assault, aggravated stalking, negligent operation of a vehicle and reckless endangermentall contrary to the peace and dignity of the State. Mr. Morse pled guilty in exchange for some lenience. He pled to grossly negligent operation and reckless endangerment, for dismissal of the other charges. 

Discretion and Disposition

In re C.L. & S.L.2014 VT 87 (mem.)

By Andrew Delaney

Parents and kids generally have a hard time of it once they’re in the court system and there are allegations of neglect. It’s a bit of a murky system.

Mom has a history with the Department for Children and Families (DCF). Her elder son was placed in another home under a guardianship due to medical neglect. Last year, “DCF filed a CHINS petition alleging parental neglect of” two younger children—who were ten and three at the time of the petition.

There was a preliminary hearing and though DCF requested custody and the court expressed “serious concern about the children’s developmental delays,” in the end the court ordered conditional custody to mom with “stringent conditions”—meaning that the parents had to jump through a lot of putatively therapeutic hoops and make sure the kids did the same. 
 

Saturday, August 23, 2014

Testamentary Trust Tussle

Curran v. Building Fund of the United Church of Christ of Ludlow, 2013 VT 118

By Andrew Delaney

Phyllis Agan lived with her husband in Ludlow for over sixty years. They were active community members. When he died, she put her assets into a trust. Over the years, she amended the trust, including several amendments approximately two-and-a-half years before she died. In the end, she left a boatload of money to local nonprofits, and some assets to her relatives. Some of her relatives—a sister and the sister’s two kids—were not too excited about the distribution of over eight-million dollars because it seems the bulk of it went to local nonprofit organizations.

So they sued. They argued that she lacked capacity and that her guardian exerted undue influence over her. Relatives and others who dealt with her during the relevant time “observed personality changes and signs of confusion.” Her primary care physician diagnosed her with dementia when she was in the midst of the various changes to the trust. About a year before the final changes, she recruited her longtime neighbor and friend to help her with her bills. About six months later, she contacted an attorney because she wanted to make a number of changes to the trust.
 

How I Learned to Stop Worrying and Imply Compliance

In re Hemingway, 2014 VT 42

By Christopher A. Davis

The Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) routinely gives hope to defendants and ulcers to attorneys, and in this case inspires a 3-2 decision by the SCOV and a passionate debate about what constitutes compliance with the requirements of the rule.

Petitioner (aka defendant) entered into a plea agreement with the State whereby he pled guilty to one felony charge of aggravated assault and five violations of conditions of release in exchange for the dismissal of a litany of other offenses. The trial court explained the rights petitioner would give up by entering the agreement, the sentencing consequences, and petitioner admitted a factual basis for the plea. The court did not inquire of petitioner whether his plea was coerced or induced by promises outside of the plea agreement, but did state that it would find his plea to be knowing and voluntary and gave him an opportunity to speak before entering said plea, which petitioner declined.

Sunday, August 17, 2014

Insurance Irritation

Murphy v. Patriot Insurance Company, 2014 VT 96

By Andrew Delaney

I’ve dealt with a lot of insurance companies and adjusters. Some are great; some are not so great; some are in between. Plaintiff had some issues with hers. But are those issues actionable? Stay tuned.

Plaintiff reported storm damage to flashing on her roof that caused water leakage, and insurer sent out a private claims adjuster four days after the report. Though there was dampness in several areas, the adjuster reasoned there was no apparent damage to the roof. Insurer paid plaintiff a few grand for wind and water damage.

Plaintiff then filed an additional claim after a worker found rot damage from water infiltration around the front chimney. The adjuster returned and insurer initially paid plaintiff a few hundred dollars more after subtracting a deductible. Though the adjuster concluded that the damage was from the same storm, insurer initially disagreed, based in part on plaintiff not having discovered a ceiling stain until two months after the storm. Two months later, however, insurer refunded the deductible and paid plaintiff the policy limit for rot and mold damage, based in part on an independent building inspector’s report.

Thoughts on Torts, Threats, and Thuggery

Baptie v. Bruno, 2013 VT 117

By Andrew Delaney

This case helps define how much responsibility a police officer has to protect a specific person when a complaint is made about a potential attacker.

Plaintiffs are the administrators of their son’s estate. Four days after they made a complaint to the police about defendant Bruno, he murdered their son. See, Mr. Bruno thought Mr. Baptie owed him some money. So he called Mr. Baptie’s parents’ house and left threatening messages, including death threats.

So they called the police. Dad had had some run-ins with the local police and was not particularly pleased when defendant Officer McNeil showed up, but defendant said the local police force was their only option. Mr. Baptie explained that he owed Mr. Bruno thirty or forty bucks for baseball cards and that was it. Defendant said he would talk to Mr. Bruno, and then the phone rang. It was Mr. Bruno.

Friday, August 15, 2014

Mistrial Mishaps

State v. Pettitt, 2014 VT 98

By Elizabeth Kruska

How many times has this happened to you? You ask a witness a question, and instead of answering the question you asked, she gives you mountains of irrelevant, highly prejudicial information instead.  Yeah.

Unfortunately, this happens. And it’s what happened in Mr. Daniel Pettitt’s restraining order violation trial. The issue was whether Daniel violated a restraining order held by his girlfriend (Girlfriend) by coming within 300 feet of her and her residence. She said he did. A third person said he did. He said he didn’t.

Termination Woes

In re A.W. and J.W., 2013 VT 107

By Elizabeth Kruska

Termination of parental rights: it’s serious, and it’s final. A parent who has been TPR’d can appeal, but that’s about it.

AW and JW were taken into DCF custody, and eventually a TPR petition was filed. A hearing was held, and parental rights were terminated with respect to AW and JW. There was another child, EW, and the petition was denied relative to him. At the hearing, Father argued that he was making progress, so his rights should not be terminated. The trial court terminated his rights, citing some difficulties in the relationship with Father and the kids, and the fact the kids had adjusted very well to their new home. Dad appealed.

Arbitration Agitation

O’Rourke v. Lunde, 2014 VT 88

By Elizabeth Kruska

O’Rourke et al. were the Plaintiffs. Mr. Lunde was the Defendant. Normally I like to use names, but it’s going to get confusing, so I’m going to use Plaintiff and Defendant.

Plaintiffs and Defendant were partners in a partnership (obviously) that owned and operated an apartment building for senior citizens in Morrisville. Defendant was a general partner and Plaintiffsthere were multiple peoplewere limited partners. The partnership term was for 30 years. After 30 years, the partnership was to be dissolved and the general partner was supposed to liquidate the assets, quickly and get a good price. Then Defendant would get 50% of the proceeds, and the limited partners would get the remaining 50% split between them. In the event of a dispute about dissolution, they had to arbitrate. The partnership agreement was made in 1979.

Sentencing Snafu

State v. Lumumba, 2014 VT 85

By Andrew Delaney

This is a case about sentencing legal permanent residents and evidentiary issues. The evidentiary issues—while facially quite valid—don’t go very far, but the sentencing issue gets a reversal. Let’s look at the backdrop.

Defendant is a legal permanent resident, originally hailing from the Congo. In 2012, while a student at UVM, defendant was convicted of sexual assault of a fellow student. The backstory is that in summer 2010, he and the victim went for a bike ride to a Burlington beach, drank beer, and had oral sex, which victim felt was nonconsensual. In the fall, victim reported the incident, defendant was charged, and convicted after a three-day jury trial.

Tuesday, August 12, 2014

This Is Really Important

In re Stocks, 2014 VT 27

By Elizabeth Kruska

Criminal court practitioners: listen up! This is important. Make sure you are paying attention to the court’s Rule 11 colloquy very carefully when your clients enter guilty or nolo contendre pleas. I mean, obviously we all listen, and we all pay attention when the judge is addressing our clients, but if important parts of the colloquy are missed, it can lead to a post-conviction relief (PCR) case.

The court must ask the defendant if he or she agrees with the underlying factual basis to support the charges. If the defendant doesn’t acknowledge that, the colloquy is insufficient.

Dollars, Distinction, and Dissent

In re Spear, 2014 VT 57

By Nicole Killoran

Today’s case addresses a rather obscure question about the collective-bargaining agreement between the State and its employees: when an employee temporarily performs a higher-level job, does he get paid for those days at a flat-rate salary increase or is his pay slotted up to a potentially higher rate as if he was temporarily promoted for those days? Apparently this is a question that the Vermont State Employees Association (VSEA) should have raised twenty years ago, according to the SCOV.

Since at least the 1980s, the salary provision of the collective bargaining agreement between the State and its employees has assigned Vermont state employees a “pay grade,” a compensation level. When a state employee takes a position, he is “slotted in” to a “step” within that pay grade to determine his wages. State employees can also cover for a higher-level employee’s temporary absence, and they are entitled to more money when they do so. In the 80s this was called “alternate rate pay,” and employees temporarily doing someone else’s higher-paying job were entitled to 108% of their ordinary salary for the days they were covering for someone higher up the work food chain.

Counseling and Conditional-Use Review

In re Howard Center Renovation Permit, 2014 VT 60

By Nicole Killoran

A few years ago, applicant, Burlington’s Howard Center, decided to relocate one of its opioid-treatment clinics and reduce the patient load on another. It leased office space for this purpose in an existing medical office in South Burlington, between 500 to 1000 feet from South Burlington Middle and High Schools, respectively. It applied to South Burlington for a permit to renovate the office space for its purposes, which included medically diagnosing and treating opioid addiction, and mandatory individual and group counseling, all under the supervision of a physician.

South Burlington granted the permit, and waived site-plan review because it thought this wasn’t a change in use for the office space. The South Burlington School District appealed the approval to the Development Review Board (DRB), lost, appealed to the environmental court, lost again, and appealed to the SCOV.

Sunday, August 10, 2014

Verified Violation

State v. Provost, 2014 VT 86

By Andrew Delaney

This is yet another case about probation and what is and isn’t a violation. Is it just me or does it seem like there’s been one of these cases nearly every week for the past several months?

Among other things, defendant pled guilty to a domestic assault. One of his probation conditions was that he participate in the “Domestic Violence (DV) Solutions program.” His intake—which took a couple tries to get to because defendant canceled twice when he didn’t have the required fee—did not go well. “The counselor terminated it because she perceived defendant’s behavior as threatening and because defendant denied committing the offense.”

Separation Anxiety

Tschaikowski v. Tschaikowski, 2014 VT 83

By Andrew Delaney

Sometimes you just have to rip off the band-aid. My professional experience with separation agreements is that they’re legal minefields. I don't think they're helpful.  If you want a divorce, just get a divorce.  If you change your mind later, well, at least you'll know what you're doing during the wedding ceremony.  But I digress.

Husband and wife are in the middle of a divorce. They entered into a separation agreement in 2007, which was formally incorporated into a final order. When they went to make their divorce “official,” husband was all like, “Oh, hey trial court—we’ve got that agreement, that’s the deal on the property settlement.” The trial court disagreed, and denied husband’s motion for summary judgment.

When the parties entered their comprehensive—meaning that it covered all the bases like parental rights and responsibilities and property division as well as including a “subsequent divorce” provision—they were both represented by counsel, waived a final hearing, and asked the court to enter a final order. The court obliged.

Saturday, August 9, 2014

Title Fight

Brattleboro S&L Assoc. v. Hardie, 2014 VT 26

By Elizabeth Kruska

Richard Hardie and Lisa Mangini were married. It’s not 100% clear, but around 2002, Richard got a mortgage from Brattleboro Savings and Loan (“the bank”) to buy a house in Weathersfield. Only he was on the title to the house and also, only he was on the mortgage. They also had a “second home rider” clause in the mortgage, because it wasn’t their primary home. Richard refinanced the house in 2004 and 2005, both times in his own name.

Richard and Lisa split up in 2007, and she moved to the Weathersfield house, in the hopes that that could be her house and ultimately, her permanent home. After living there about 10 months she filed for divorce in Vermont, and asked that the Weathersfield house be granted to her in the property settlement. While the divorce was pending, Richard refinanced the house again, again solely in his name, and continued to call it a second home, rather than either of their homesteads.

Changing The Rules: Can’t Do It

Vermont North Properties v. Village of Derby Center, 2014 VT 73

By Elizabeth Kruska

Way back in the blissful days of the late 1980s, Vermont North Properties (VNP) bought a chunk of land in the Village of Derby Center (Village) with the hopes of one day developing eight apartment buildings on that site. The plan was for a total of 44 apartment units. VNP wasn’t going to build them all at once; rather they’d build them over time as demand for the units became known.

Since VNP is in the building business, they knew they had to get certain permits and permission to do various things relative to their buildings, including getting a water and sewer permit. They weren’t planning to build all the buildings at once, so they wrote a letter to the Village of Derby Center in 1987 asking that water and sewer allocations be reserved for them so that when they wanted to build apartment buildings in the future, that part would already be taken care of. The Village said "ok" and granted the allocation reservation.

A Little Clarity, Please?

State v. Cornell, 2014 VT 82

By Elizabeth Kruska

Probation conditions are apparently quite the battlefield. SCOV has decided what seems like eleventy hundred cases about probation conditions recently. Why? Because if the conditions are too vague or not written correctly, there’s room for a probationer to misunderstand what is (or isn’t) required. On the other hand, if there are too many conditions, there’s also room for confusing overlap. Or, if you’re involved in this particular case, all the above apply. If a defendant doesn’t agree with a probation condition being proposed, he or she can object to it at the time of sentencing. That also applies here. Sort of.

Owen Cornell was convicted of a sex crime and sentenced to a split sentence after a contested sentencing hearing. The State wanted 2-8 years to serve. Mr. Cornell wanted probation. The court split the difference and imposed a split sentence of 2-6 years, all suspended but 20 months to serve in jail, with credit for time already served.

What’s Done Is Done . . .Maybe

Spencer v. Spencer, 2014 VT 63

By Elizabeth Kruska

In today’s episode of Property Settlements: What’s Done Is Done is an example of a time when what’s done might not actually be done.

Donald (Husband), who was in the military, and Gerda (Wife) got married in 1981. Husband retired from the military in 199817 years after their marriage. However, he had about 22 total years of military service under his belt at the time he retired, meaning he had 5 or so years of service prior to marriage. They divorced in 2000. When they divorced, they agreed that his military pension would be split such that Wife received 41.8% of the gross pay, and he’d get the rest.

Husband went back into military service in 2009, a fact the parties probably didn’t expect to happen at the time of their divorce. Husband worked as a ROTC instructor for 3 years. This did a couple things. First, it made it such that his pension wasn’t being paid out anymore, since he was working. Second, it increased his pension base, since he was adding more service time upon which a pension could be paid. 

Friday, August 1, 2014

Not so fast, New Hampshire!

In re LaPlante, 2014 VT 79

By Andrew Delaney

New Hampshire is often called Vermont’s sister state. I understand that sisters sometimes fight over gentlemen callers. Sometimes my analogies need a little work. I was going to crack wise about petitioner being caught in some kind of two-state love triangle, but that might not work here ‘cause they’re kind of working together against petitioner. Anywho . . . .

Mr. LaPlante allegedly failed to appear at some 2009 hearing related to restitution and a deferred sentence in New Hampshire. The details aren’t entirely clear, and I think that’s the problem in a nutshell. All this goes back to a 1998 conviction that by all appearances lay dormant for nearly ten years. But, when petitioner didn’t show for his 2009 hearing, the New Hampshire court issued a capias (vocabulary lesson for the day: a capias is “[a]ny of various types of writs that require an officer to take a named defendant into custody”) and set bail. 
 

Saturday, July 26, 2014

The “You Snooze, You Lose” Doctrine

Joseph v. Joseph, 2014 VT 66


Mr. and Mrs. Joseph (“husband” and “wife,” because that’s shorter) were married for 23 years, until in December 2011, wife filed for divorce. Ten months later, in October 2012, the parties entered into a temporary stipulation. In part, it called for husband to pay various debts, like the mortgage, taxes, insurance, and utility bills. The parties apparently couldn’t agree to any more than that, and had a 2-day contested hearing in March of 2013.

It would appear that husband didn’t pay for certain things between October and March, as required in the October stipulation. Wife didn’t bring this up during the final hearing, even though it seems that at the time, she knew there were things that weren’t paid. The court divided the property and issued a final divorce decree in April 2013. The parties went on their merry ways and nobody appealed.

Jumping the Gun

Kelley v. Department of Labor, 2014 VT 74

By Andrew Delaney

I couldn’t say it better than the SCOV. “This case turns upon a common question in employment disputes: did the employee jump, or was she pushed?”

Claimant was employed at Maple Leaf Farm Association, Inc., as a part-time treatment counselor for seven years. Due to a conflict with her supervisor, she submitted a letter of resignation. She said her last day would be a little over two weeks later. Employer allowed her to continue working, but that only lasted four days; claimant got the proverbial boot and was escorted off the premises.

Claimant applied for unemployment benefits. The initial adjuster found that she had left employment voluntarily without good cause and denied the claim. So claimant appealed to a referee, who found that claimant was entitled to benefits, and that there was no indication of misconduct in the record.

DataMaster's "Fatal" Error revived with CTRL-ALT-Delete

State v. Burnett, 2013 VT 113

By Ember Tilton

After being arrested for DUI, Jason Burnett attempted to blow into the DataMaster (Vermont's evidentiary station-house breath-alcohol-testing machine). He might have thought he hit the DUI jackpot when the machine returned a "fatal error" message. Machine's broken! Game over. But, like with Microsoft windows, one may only need to turn it off and turn it back on again. 

Well, that's exactly what the police officer did. And, the second time it worked "like a charm" returning a .229 reading (that's a pretty high test result in case you were wondering). Under Vermont law, a person is entitled to a second try. So, when he attempted again and the machine again returned a error message, the process was repeated. Again, the machine worked after the restart and Burnett blew a .260 (assuming that the machine is accurate, that's over halfway to dead, medically speaking). He was subsequently charged with DUI and issued a civil suspension complaint.

Extinction of distinction . . .

Demag v. Better Power Equipment, Inc., 2014 VT 78

By Jeffrey Messina

In this case, the SCOV takes the bold step of abolishing Vermont's common law negligence distinction between licensees and invitees.  Perhaps the SCOV wanted to make this year's administration of the bar exam just a little more interesting.

Plaintiff appeals a summary judgment decision against him in his personal injury case. The superior court concluded that plaintiff was a licensee of the defendant rather than an invitee. As such, plaintiff was entitled to a lesser standard of care, and plaintiff lost.  Or did he?  

Let's take a look at the facts.  

Thursday, July 24, 2014

PSI, PCR, OMG!

In re Allen, 2014 VT 53

By Jeffrey Messina

WARNING: This SCOV Law summary contains graphic material that may not be suitable for all audiences. Parental guidance is suggested . . . .

This case involves allegations of a pretty horrible act on a child, and how much discretion a trial court has to consider facts not in evidence when determine sentencing.

Petitioner appeals a summary judgment ruling in his quest for post-conviction relief (“PCR”) on the basis that the court applied improper legal standards in reaching its decision on his claim of ineffective assistance of counsel.

Wednesday, July 23, 2014

Reviewing the unreviewable . . .

In re Roy Girouard, 2014 VT 75

By Jeffrey M. Messina

Petitioner appeals the superior court's denial of motion to reopen his post-conviction-relief (“PCR”) petition and order the Department of Corrections (“DOC”) to release him on furlough.

In the mid-seventies, petitioner was convicted of first-degree murder and sentenced without a minimum term. At the time, eligibility for furlough was not conditional on the completion of a minimum prison term. However, in 2001 the Legislature amended the governing statute to condition eligibility for conditional re-entry furlough on the completion of a minimum term.

Petitioner filed an action against the DOC in 2007 alleging its refusal to consider him furlough eligible because he lacked a minimum sentence violated the Ex Post Facto Clause of the US Constitution. The superior court dismissed the claim determining the amended statute did not violate the clause because it did not increase the penalty for the crime. 

Tuesday, July 22, 2014

The Leave-Behinds

JW, LLC v. Ayer, 2014 VT 71

By Elizabeth Kruska

With the parties named Bryan and Debbie, it took everything I had not to write this summary to the tune of “Scenes From An Italian Restaurant” since the names “Bryan and Debbie” make me think of “Brenda and Eddie.” If anyone wants to write a verse or two, leave it in the comments and maybe we can make a song. It might be the first-ever song parody written about landlord-tenant law.

Bryan and Debbie rented a home from JW, starting in 2005. It was relatively new and in great condition when they moved in. They lived there until 2012 with their kids, dogs, chickens, and all their personal property. They didn’t pay rent in March and April 2012. They did pay their May 2012 rent, plus $300 in arrears on their back rent.

JW, the landlord, filed for eviction in July. The court issued a rent escrow order. That’s when, during an eviction, tenants can continue to pay their rent, but they pay it into the court while the case is pending instead of paying the landlord. Bryan and Debbie paid part of their August rent, but not all of it. The opinion isn’t totally clear, but it appears they did not pay June or July’s rent.

Who’s Your (Well, Anybody’s) Daddy?

Moreau v. Sylvester, 2014 VT 31

By Elizabeth Kruska

At first blush, the facts of this case seem simple.

Christopher Moreau and Noel Sylvester dated over several years. Noel has 2 kids. Christopher wasn’t their dad, but for 8-10 years, was a pretty significant parent-figure in their lives. I think we can assume that he and the kids formed a relationship based on the time they spent together.

Unfortunately, as things sometimes do, the relationship fell apart. Noel moved on and started dating someone new. Christopher sent her text messages suggesting he would find her and the kids. He tracked down Noel’s new boyfriend at work, and then went to Noel’s house and knocked on her door in the middle of the night. The next night he did the same thing with a friend, and they both banged on Noel’s door until the police came.

Based on this behavior, Noel decided to get a relief from abuse (RFA) order, which was granted relative to both she and the kids. This happened in Caledonia County. Christopher appeals this.

Sunday, July 20, 2014

Combination Conundrum

In re B.A., 2014 VT 76

By Andrew Delaney

B.A. was referred to a special school when she was 13 or so. There were concerns from the get-go about hygiene and self-injury. There was also an incident in which B.A.’s brother was allegedly sexually assaulted by B.A.’s friend, while B.A. was present and mom was in another room at their house. Then B.A. showed up to school drunk. The Department of Children and Families (DCF) got more involved, and a child-in-need-of-care-or-supervision (CHINS) proceeding as well as a juvenile delinquency proceeding were started.

The trial court essentially combined the two proceedings, and mom waived her right to counsel. B.A. admitted the delinquency, but mom opposed the disposition on the delinquency (which recommended continued DCF custody), and the merits on the CHINS allegation. There was a two-day hearing, and evidence was introduced about the living conditions at mom’s house, B.A.’s behavioral issues, and the alleged sexual assault. 
 

Two for the Price of One?

Hoiska v. Town of East Montpelier, 2014 VT 80

By Andrew Delaney

In this case, “two for one” is not so much a deal as it’s a potential penalty. The SCOV holds that an unrecorded survey with a supposed dividing line through it doesn’t legally break your property up into two lots. Dates become important in this case though.

Taxpayer has owned a 16.2-acre lot since 1977. In 1977-78, taxpayer had a survey done, which may or may not have included a line subdividing the parcel into two lots. From 1974-82, the town only required subdivision approval for a three-or-more-lot division. After 1982, approval was required for two-or-more—in other words, any—division. Now, in 1986, taxpayer recorded the 1977-78 survey. She never applied for nor received subdivision approval. Almost 15 years passed. 
 

Monday, July 14, 2014

Crisis Averted

O’Connor v. O’Connor, 2013 VT 110 (mem.)

By Andrew Delaney

This is not a complicated case.  All it takes is a letter . . .  

Parents were divorced in 2011. They shared parental rights and responsibilities for their two boys pursuant to an agreement, and the boys lived primarily with mom. Dad got to claim the older boy as a dependent on his taxes, while mom got to claim the younger. Once the older boy turned 18, the parties agreed to alternate claiming the younger.

Just over a year later, the boys switched to living with dad, and the trial court entered an order modifying physical rights and responsibilities. The court issued an order modifying child support and spousal maintenance, but did not address dad’s request that he be allowed to claim both boys on his taxes.

 

Playing by the (Administrative) Rules

Luck Brothers, Inc. v. Agency of Transportation, 2013 VT 249

By Hannah Smith

In this case, what began with a simple contract dispute quickly evolved into a relatively complicated exploration of the administrative dispute-resolution process.

Plaintiff Luck Brothers, Inc., a construction company, bid on and was awarded a contract by the Vermont Agency of Transportation to rebuild a section of Main Street in Barre City, Vermont. The project commenced in 2011, expenses mounted (as they are wont to do), and soon plaintiff’s expenses exceeded the bid amount. Plaintiff filed a claim against the Agency for additional compensation, alleging differing site conditions from those assumed in the original contract. All very straightforward. The fun began when plaintiff attempted to skirt the Agency’s administrative review process by filing the claim in Superior Court instead of seeking a determination through the mandatory dispute resolution process. Luck Brothers sought from the court both compensation, and a declaratory ruling that it had no obligation to exhaust its administrative remedies through the Agency’s administrative-review process because that process failed to comply with the requirements of due process.

Summer Camp Blues

Brownington Center Church v. Town of Irasburg, 2013 VT 99

By Hannah Smith

A recent ruling by the SCOV proves again the old adage that nothing is certain but death and taxes. According to the Court, not even godliness guarantees you a property-tax break under the stern, secular eye of the law.

Quite simply, this case concerns a dispute over the tax-exempt status of a Christian summer camp, and whether the camp property qualifies for the “pious-use” real estate tax exemption. The Court held that it does not because church camps are not among the specifically identified types and uses of property eligible for the exemption under the statute.

Stepparent Standards Split

LeBlanc v. LeBlanc, 2014 VT 65

By Andrew Delaney

The parties to this case were married approximately a dozen years. During a separation early on in the marriage, mom got pregnant by another man. Dad attended the birth. The parties later got back together, and dad’s been there since his stepson was a year old. Later on, the parties had four more kids together.

Mom filed for divorce, and after a multi-day trial, the trial court granted the parties a divorce, set forth a visitation schedule, and awarded primary parental rights and responsibilities (except for medical decisions) to dad for all five children, including his stepson. Mom appealed arguing that: (1) the statutory requirements for divorce weren’t met; (2) the trial court erred when it awarded primary rights and responsibilities for her son (dad’s stepson) to dad; and (3) the trial court abused its discretion in setting the visitation schedule.

The SCOV majority says the trial court messed up when it awarded primary rights and responsibilities for the stepson to dad without a finding that mom was an unfit parent, but affirms everything else. Let’s take a look at the facts, shall we?

Saturday, July 12, 2014

If it walks like a duck . . .

State v. Brunner, 2014 VT 62

By Andrew Delaney

This is probably the first SCOV Law summary that begins with a picture. But hey, if the SCOV is going to include a picture in its opinion, aren’t we obligated to do the same in our summary?

Does that thing look like brass knuckles? I’m willing to say it does not not look like brass knuckles.

We have a statute in Vermont that prohibits possessing brass knuckles or similar weapons with intent to use them. It also prohibits a “slung shot.” Before today, I thought that was a misspelling of slingshot—it’s not. It’s a weight on the end of a strap or chain, presumably to whack at people with. No kidding.