Sunday, April 27, 2014

Jurisdictional Jousting

Cameron v. Rollo, 2014 VT 40

By Andrew Delaney

Jurisdictional appeals are rarely interesting, but this one may prove the exception to that rule.

Here’s the skinny: wife files for divorce against husband. But there’s a problem. Wife was still married to her first husband even though she thought she was divorced. So, the current marriage is void. The family division closes the case, and then kicks the can to the civil division on property issues. No kids.

Husband follows instructions and files a couple small-claims cases. He wins one, loses the other. He appeals the one he loses and the civil division rules that neither the civil division nor the small-claims division have jurisdiction over the marital property—accordingly, the family division must decide the property issues. Husband sought review in the SCOV.

Professorial Punishment?

In re Aleong, 2014 VT 15

By Andrew Delaney

This is one of those cases simply littered with acronyms. So we’ll start with a handy key to help you decipher this alphabet soup.
  • UVM is “University of Vermont”
  • DPSS is “Department of Plant and Soil Science”
  • VLRB is “Vermont Labor Relations Board”
  • CALS is “College of Agriculture and Life Sciences”
  • CEMS is “College of Engineering and Mathematical Sciences”
  • FTE is “full-time equivalent”
  • MOU is “memorandum of understanding”
  • CBA is “collective bargaining agreement”
  • OMG is “oh my God!” 
  • RUFEDUP is a lame joke
About twenty years ago, UVM’s DPSS hired grievant as a 0.8 tenured professor in the CALS. Grievant also was simultaneously given an untenured 0.2 FTE position in CEMS, teaching one course per semester, so long as he maintained his teaching at a satisfactory level.

Saturday, April 26, 2014

S-jay for you, S-jay for me!

Madowitz v. The Woods at Killington Owners’ Assoc., Inc., 2014 VT 21

By Jeffrey M. Messina

This case is the second of two involving the competing interests of a homeowner’s association and a developer; the competing authority of a condominium declaration and warranty deeds; and, ultimately, competing motions for summary judgment.

The Woods at Killington (the “Association”) is a condominium development created by declaration in 1985. The units were conveyed by warranty deed to private owners. The original declaration, as well as the amended declaration (1988), included a limited power of attorney from unit owners granting consent for the developer to amend the declaration and change current unit owner percentage by adding additional units. The original plan called for 147 condos and residential homes. Only 107 were built.

Payout Preservation and Partially Prevailing Payments

Bonanno v. Verizon Bus. Net. Sys., 2014 VT 24

By Andrew Delaney

This case is about the vagaries of workers’ compensation settlements—with a Vermont-specific twist to keep it interesting.

Plaintiff sued his employer and its third-party administrator for breach of a workers’ compensation settlement agreement. The superior court granted summary judgment against plaintiff and in favor of employer, but awarded plaintiff a small amount of attorney’s fees. Plaintiff appealed, arguing that employer shouldn’t have been able to deduct temporary total disability (TTD) payments from the total settlement payout, and that the attorney’s fee award was too small.  Employer appealed the attorney’s fee award—period. The SCOV affirms. 
 

Monday, April 21, 2014

Passive Action

Wesolow v. Town of Lowell, 2014 VT 3.

By Nicole Killoran

Today’s case offers a small lesson in what happens when citizens’ concerns get ignored at Town Meeting.

For those of you unfamiliar with this tradition, at least once a year in March the governing bodies of all 251 Vermont towns hold a town meeting. The body (usually the town selectboard) holding sway generally employs parliamentary rules such as Robert’s Rules to conduct town business. This involves, among other things, articles, motions, seconds, and votes on all manner of issues, from town business to extra-town business town citizens want to discuss.

Give it a Go

In re. S.C., 2014 VT 7.

By Nicole Killoran

Attorneys have a reputation for being creative boundary-pushers who will stop at almost nothing to serve their clients. This is at least in part because attorneys are both trained and ethically obligated to make the best argument to advance a client’s interests, even if the chance of success is microscopic.

But sometimes even vague legislative drafting, obsolete statutes, and obscure rules and reasoning hidden in unquestioned 19th-century case-law—all fodder for making the best losing argument—can’t change a client’s impossible set of facts. At that point, hired attorneys have the option of asking to withdraw from representation rather than fighting a losing battle.

Sunday, April 20, 2014

Need 4 Speed: Fast Enough?

State v. Reynolds, 2014 VT 16

By Jeffrey M. Messina

Speedy-trial rights are oft asserted, but rarely do they win the case for a defendant. Imagine a drag-racing movie where the mechanics just work on the cars until nearly the end of the movie. You’d probably want your money back, right?

Defendant was charged with a single count of sexual assault in early March, 2010. Trial was first scheduled for January 2011 but was continued to March 2011. Although the hearing began as scheduled, after two days, the court declared a mistrial due to significant problems with the sign language interpretation process. Oh yeah, two of the state's witnesses—including the complainant—were deaf and required the assistance of American Sign Language (ASL) interpreters.

Invalid Prosecution?

State v. Cuomo, 2013 VT 101

By Andrew Delaney

Prosecutors have a lot of power. Defense attorneys do their level best to reduce that power. It’s kind of like Star Wars with statutes and legal arguments instead of stormtroopers and lightsabers. Or not.

Defendant claimed the Orleans County State’s Attorney was invalidly appointed. The trial court concluded that the appointment was valid and that even if wasn’t, the Orleans State’s Attorney had authority to prosecute under the de-facto-officer doctrine. The SCOV agrees that the de-facto-officer doctrine covers it and affirms. 

Friday, April 18, 2014

Is that Bruce Springsteen Song Enough?

Paige v. Condos, 2013 VT 105

By Andrew Delaney

Though there’s still some debate in certain circles, it’s generally accepted that Barack Obama was born in Hawaii—or as Springsteen put it Born in the U.S.A. President Obama’s mother was a U.S. citizen and his father was Kenyan. Nobody really disputes that. I even checked Wikipedia to be sure. The consensus is that if you’re born in the United States, you are a U.S. citizen.

But this case is about whether President Obama qualifies as a natural-born citizen. I guess we’ll never find out because the SCOV just dismisses the case as moot.

Sunday, April 13, 2014

There has to be a reason for everything . . .

State v. Button, 2013 VT 92

By Andrew Delaney

If you aren’t doing anything wrong, then the police can’t stop your vehicle just for kicks. This is pretty basic, but nonetheless I’m sure the criminal-defense bar will breathe a collective sigh of relief after reading this opinion.

Personal story time: One night, not too long ago, I was driving on a dirt road on my way home from dropping off a friend. A car came up fast behind me and proceeded to tailgate. I signaled and pulled over to the side of the road. Then I saw the blue lights.

The nice officer informed me that I was “driving too slow.” He then asked me to produce my license, registration, and proof of insurance, which I did. All were in order. When he returned to my vehicle, he asked me if I had had anything to drink. I said no. He said he could smell it and told me that my eyes were “telling [him] a different story.” I laughed. I was then ordered out of my vehicle. At this point, I started grumbling about “reasonable suspicion of wrongdoing” and so on.

No Second Chance

LaFrance Architect v. Point Five Development, LLC, 2013 VT 115

By Andrew Delaney

This decision is cold comfort indeed for the defendant: yes, the trial court got it wrong when it explicitly declined to consider potential defenses in the context of vacating a default judgment—but no matter because defendant didn’t make a compelling showing that it had a meritorious defense. And so the cookie crumbles.

The case arises from a contractual dispute. Plaintiff architect and defendant developer entered into a contract to build a Walgreens. Architect sent an invoice, which developer responded to over a month later with a vague letter accusing architect of breaching the contract and screwing up the design. So architect filed a mechanic’s lien in the land records. Developer got a bond to remove the lien, but didn’t send a copy to architect. Architect filed a suit to perfect the lien and for damages.

Prepare for the worst . . .

In re Chaves Act 250 Permit, 2014 VT 5

By Andrew Delaney

Nobody really wants a sand and gravel pit right across the road it seems. And if it’s been there a long time, people want to get rid of it when they have the chance. That’s this case in a nutshell.

Applicants’ sand and gravel pit site has been used for at least fifty years for sand and gravel extraction—though it’s not clear exactly to what degree. Neighbors own a country inn across the road. Applicants bought the property in ’97 and went to work taking out sand and gravel. They didn’t get any permits. At some point, the local environmental commission found that the applicants’ activities were a substantial change from preexisting use and a permit was required. Applicants appealed that decision to the environmental division.

Saturday, April 12, 2014

2012: A Parole Violation Odyssey

Rodriguez v. Pallito, 2014 VT 18

By Elizabeth Kruska

Teacher: Bueller? Bueller? Bueller?
Simone: Um, he's sick. My best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious.
Teacher: Thank you, Simone.
Simone: No problem whatsoever.

Hearsay is an out of court statement used to prove the truth of the matter asserted in the statement. This example is something like eight layers of hearsay, and never stops being funny. If Simone had to prove in court that Ferris Bueller actually passed out at 31 Flavors last night, a judge would've required that she produce the girl who saw Ferris pass out to testify about what she saw. But this was just a teacher taking attendance, not a trial where Ferris’s liberty was at stake. Actually, since Ferris Bueller was taking the day off, it was pretty much exactly opposite of that.

Monday, April 7, 2014

Fresh Meat, Old Meat

Greetings, SCOV Law Reader(s),

As you have probably noticed, over the past few months, the SCOV Law blog has been a little slow in posting new summaries.  While we have started to post new 2014 decisions, we have fallen behind our stated goal in providing timely summaries to current SCOV cases.  For that, we apologize.

As with all great experiments, we at SCOV Law have been victims of our own success and the grueling pace that continuing this success entails.  

For the past three and a half years, we have relied on a murderer's row of talented and volunteer contributors who have constantly out shown themselves in producing summary after summary  of entertaining, educational, and thoughtful prose.  It is not easy to dissect complicated legal theory and fact patterns, leaven it with jokes, and maintain crisp writing week after week.  We are lucky to have such great contributors even for short periods of time.  To each of them, past and present, we are grateful for all the work they have given. 

To ensure that the SCOV Law blog continues this tradition of excellence, we are making a few changes. 

For the past three and a half years, Dan Richardson has provided the primary editing, posting, and obscure reference duties in addition to his contributor role.  Dan, for a number of reasons (family, Bar Association obligations, jai alai, and muppet fan-fiction), can no longer perform these editing duties and is stepping down from this role.  

In his place, long standing SCOV Law contributor, Andrew Delaney will be taking over the editorial and posting functions.  (Richardson will be retaining all obscure references as they belong to the primum mobile to which few have access).  Andrew, while married, does not have many interests, hobbies, or friends, which makes him perfect for the role of editor. 

We will also be introducing new contributors over the next few weeks.  

All of this means that there are more reasons than ever to keep us in your RSS feed and to check for regular updates.  We expect to be posting more and more over the next few months.  So keep us in mind when you are thinking about Vermont legal issues.  You know we'd do the same for you.  

As always, thank you for reading, and please continue to patronize our blog and smoked meat shop in Derby!  


---The Staff of SCOV Law 

The Not-So-Funny Farm


Paine v. Buffa, 2014 VT 10.

Vermont is well-known for inspiring self-sufficiency and industry.  World-weary travelers seek the solace of the Green Mountains, buy land, take up the homestead life, and pick up a craft or farming.  But as today’s parties found, it’s no easy task to start a cottage industry.  Many newly-arrived flatlanders have tried to do so under their own steam, and have failed.  Today’s parties appear to have met such a fate notwithstanding substantial support from the parental units.

But today’s case is not simply an idyllic metaphor about trying, and failing, to live a charmed life in rural Vermont (Chevy Chase or his agents, please take note).  It’s about custody and property.  So let’s get to it. 

The parties met in Colorado in 2002 when they were 18 and 22.  (I envision a chance meetup at the Bonnaroo Festival beneath Widespread Panic on the main stage, but who knows, they may have met at Red Rocks).  The young couple traveled for a year, and landed in Vermont.

Rational Taxation


Lathrop et al. v. Town of Monkton, 2014 VT 9.

There are two certainties in life: death and taxes.  For the second, every town in Vermont has, to the chagrin of landowners, a posse of listers ready to mount up and find ways to increase property assessment values, but for those who think they can out run such Ox-Bow incidents, there lies another certainty to contend with: the tax appeal. 

One of the creative ways that the Town of Monkton has to extract value out of properties is to tax land for the potential that it has for “subdivision and further development.”  In 2011, when the underlying appeals in today’s case were taken, a landowner in Monkton could subdivide his property if it: 1) was naturally divided by a road; 2) contained multiple contiguous lots created by deed before zoning was introduced in 1978; or 3) had a subdivision permit from the Development Review Board.  Categories one and two are taxed as having one house site.  Category three is taxed as having the potential for two or more house sites. 

As you might imagine, the appellant taxpayers in this case all had subdivision permits and were handed an uncomfortable tax bill for multiple house sites even though their parcel only had one actual house site.

Let’s Do It Again [on the Healthcare Rollercoaster]

In Re Brett & In Re McCool, 2014 VT 20

By Sara Puls

In 2011, SCOV blog covered In re Jean Brett, 2011 VT 28, in Riding the Healthcare Rollercoaster.  The post lamented over the disconnect in our healthcare system between seemingly rational healthcare laws and policies and the very real and very negative effect that these laws can end up having on Vermonters who are most in need.

Well, unfortunately, this healthcare rollercoaster ride ain’t over, folks!  Here, we have another lap around the track.  Three years after petitioner’s first appearance before SCOV, she is still fighting the state healthcare bureaucracy, just to ensure she can survive and meet her basic healthcare needs. We now add another passenger to this ride, another petitioner, faced with a similar unfortunate, bureaucratic battle.

First, here is a little background to try to set the stage for this convoluted ride. Petitioners are both elderly recipients of benefits through Vermont’s Medicaid-funded “Choices for Care” (Choices) program which provides home-based, long-term-care services to elderly or physically disabled Vermont adults.  The first petitioner is in her mid-eighties, disabled, and living with her daughter.  The second petitioner is in her mid-sixties struggling with multiple sclerosis and diabetes, and lives with her son.

Choices is (dis)jointly administered by Vermont’s Department of Disabilities, Aging, and Independent Living (“DAIL”) and Department of Children and Family Services (“DCF”). Applicants for these crucial services must satisfy both clinical and financial criteria, with DCF determining financial eligibility and DAIL determining clinical eligibility.  Choices covers “personal care services” including both assistance with activities of daily living (ADL) and assistance with instrumental activities of daily living (IADL). Personal care services through Choices are capped, but an individual may seek a variance.

Historical Hindrances

In re Bjerke Zoning Permit Denial, 2014 VT 13


So this guy wanted to fix up a house he owns.  He applied for a zoning permit and outlined what he planned to do: raise the roofline, replace some porticos with canopies, and replace some windows.  But it’s an old building. 

Five days after he applied, a city planner emailed him and said she didn’t think it was going to pass muster due to the building being on the National Register of Historic Places, but she could put it on the Design Advisory Board’s (DAB) agenda if he wants.  He wants.  So it goes on the DAB agenda; the DAB holds a meeting, which owner attends; and ultimately, the DAB tables the issue.  Apparently the windows and porticos were acceptable to the board, but the board asked for a new drawing that clearly showed the difference between the proposed roofline changes and the original structure.

Owner brought a new drawing to the city planner.  She told him she didn’t think it was what the DAB was looking for, so he didn’t submit it.  He didn’t say whether he wanted to go forward with his application or submit a revision.     

Some time passed.  Then owner met with the city zoning administrator.  At that point, because the DAB hadn’t acted on the permit application within thirty days, owner wanted the permit deemed approved.  The zoning administrator said, more or less, “Oh no, no—the DAB tabled that—it’s not approved.”

Perpetual Issues


In re Estate of Fitzsimmons2013 VT 95

Refreshingly, today’s case brings us to an area of law rarely addressed by the SCOV—the scope of the authority of an executor to divvy up the ‘residual estate’ of a testator to carry out the intent of the dead person—also known as the decedent—even if that intent requires the executor to break up the old, ancestral Vermont farmstead—and even if not all of the beneficiaries want such divvying. 

In other words, Fitzisimmons is a case about the siblings that want to keep the property in the family versus the siblings that want to sell the property and take the money.  A classic ‘flatland[ers] fable.’

The decedent in today’s case died in New York in 2006.  She had a will, and she designated her daughter (who we shall call ‘the eternally burdened eldest daughter,’ or EBED) as executor. EBED dutifully carried out the thankless task of settling mom’s estate and dividing those things that mom didn’t specifically bequeath in her will.  Chief amongst those assorted miscellany was a farmhouse and nearly 300 acres in Wells, Vermont.

(As a Vermonter born and bred, I cannot fathom anyone other than a flatlander owning a piece of god’s acre and forgetting to put it in the will—which, if you ask me, assures us that Ms. Fitzsimmons did, in fact, want to dispose of the Vermont property, but since native hunches remain inadmissible, I digress).

Sunday, April 6, 2014

Retroactivity, Revisited and Rejected

State v. Aubuchon, 2014 VT 12


Sometimes I’ll pretend I understand something that’s a mystery to me.  For example, I can recite the rule against perpetuities from memory.  I know the elements and areas of the law where it applies, but don’t ask me to explain it.  I know just enough about it to wave it around and pretend. 

Sentencing calculations are something I’m not going to pretend to understand either.  That’s some “new math” in my book.  The DOC can have it. 

In today’s case, defendant wanted additional credit toward his aggregate minimum sentence, but the trial court denied it, and that led to this appeal.  As the SCOV puts it, “The facts concerning the multiple charges filed against defendant and the subsequent sentencing are complicated.” 

Ain’t that the truth?