Saturday, May 31, 2014

Moose Lodge Mayhem

Buxton v. Springfield Lodge No. 679, Loyal Order of Moose, Inc., 2014 VT 52

By Andrew Delaney

It's all fun and games until someone gets hurt. This case even has mom bustin’ up a fight.

Plaintiff was a partygoer who was injured during a Moose Lodge New Year’s Eve party when a fight broke out between two other partygoers. It gets a little confusing what with the “juniors” and “seniors” and so on, so let’s just call those players by their familial designations—mom, dad, and son.

Mom, dad, and son (an adult) were at the party. Dad was the governor of the Lodge—the highest position within the Lodge pecking order. Son had a reputation as a “hothead” and a “fighter,” and by all accounts he lived up to that reputation.

Thursday, May 29, 2014

Juvie Jurisdiction

In re A.W., 2014 VT 32

By Elizabeth Kruska

A.W. was a baby (like, 20 days old or so) when this case began.

Mom and Dad lived in Enosburg in 2012, when Mom got pregnant with A.W. Mom and Dad had some rocky issues, both together and on their own; mental health, drug use, drinking, and eventuallydomestic problems together. Before A.W. was born they moved to Plattsburgh, New York, although Mom continued getting her medical care across the pond at Fletcher Allen. A.W. was born in Burlington, and shortly after his birth, the family went to Dad’s parents’ home in Swanton. They apparently went back to New York not long after, because the Plattsburgh police ended up responding to a domestic dispute between the parents when A.W. was about a week old. Mom ended up in a psych ward; Dad returned to Swanton with A.W. and made plans to stay there.

Dad signed up for all sorts of Vermont services (welfare assistance, a temporary relief from abuse order, a Vermont DCF safety plan), and it looked like he was going to stay.

Monday, May 26, 2014

Functional Flexibility

In re ANR Permits in Lowell Mountain Wind Project, 2014 VT 50

By Andrew Delaney

Technical noncompliance arguments work quite well sometimes; other times, not so much. This appeal falls into the latter category.

When a project has over twenty-seven acres of impervious surfaces, a stormwater-management permit is required. The Wind Project at issue in this case “is a wind-powered electric generation facility involving twenty-one wind turbines, along with access roads, a substation, an operations building, and power lines.” It needed a permit.

Just once is enough . . .

Kneebinding, Inc. v. Howell, 2014 VT 51

By Andrew Delaney

It’s a tough sell to say that a provision of one contract that you did sign doesn’t apply when you didn’t sign a second release that says essentially the same thing. But here’s to trying . . . .

Defendant started a corporation to develop a ski binding based on one of his inventions. He needed financing, and one of the primary financiers gained a controlling interest in the corporation and became chair of its board of directors. Defendant became president and CEO. Defendant entered an employment contract with the corporation making him an at-will employee. The contract provided a year’s salary in severance pay if defendant was fired other than for cause.

Sunday, May 25, 2014

Trust Me!

In re PRB Docket No. 2013.153, 2014 VT 35 (mem.)

By Andrew Delaney

So this one isn’t really a SCOV decision—it’s a Professional Responsibility Board (PRB) decision that the SCOV orders published in the Vermont Reports sans briefing or argument. As a wise woman named Beyonce once said, “If you like it, then you oughta put a ring on it . . . .”

This is a case involving proper management of trust accounts. If you’re the least bit familiar with professional responsibility law, you know that there are two surefire ways to get in hot water with the bar: (1) commit some heavy-duty crime like murder, embezzlement, arson, or insurance fraud; or (2) screw up your trust accounts. The parties filed stipulated facts, conclusions of law, and recommendations for sanctions with the PRB. It appears respondent didn’t properly manage his trust accounts.

Thursday, May 22, 2014

Shall Means Shall. Really.

State v. Hemingway, 2014 VT 48

By Elizabeth Kruska

One of the first things you learn in law school is that certain words mean certain things. The best example of this is “shall” versus “may.” “Shall” means “this is something that has to happen and unless we tell you there is an exception this is how it is.” “May” means “hey, it’s possible and this is allowed but nobody’s saying it’s absolute.”

In this case, the SCOV majority takes many pages to remind everybody what law students learn on the second day of law school.

Wednesday, May 21, 2014

SPEED, huh? Not so fast…

In re: Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development (SPEED) Program2014 VT 29

By Jeffrey M. Messina

This case is an appeal from the Public Service Board's (the “Board”) decision that a proposed solar power project does not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeds the statutory limit on generation capacity.

This SPEED program was established to promote development of renewable energy in Vermont in two ways: the firstby requiring electric utilities to purchase a certain amount of power from renewable energy sources; the secondby creating a standard-offer program. The Board, under the standard-offer program, authorizes particular long-term-power-purchase contracts with electrical providers in Vermont for renewable energy projects with “nameplate” capacity of 2.2 megawatts (“MW”) or less (and which meet other specific criteria).

Tuesday, May 20, 2014

Right-of-Way-Rights Rumble

Brault v. Welch, 2014 VT 44

By Andrew Delaney

Lake access is important when selling a property. In fact, it’s important enough that when a deed is even slightly ambiguous, the property owners affected might battle it out in court. That’s what happened in this case.

Back in the late 70s, a married couple owned two properties on a lakeside road. They deeded one of them to their son and daughter-in-law, which included a five-foot-wide right-of-way “leading to the lake along the existing block wall and southerly thereof.” Whatever that means. The Braults, appellants here, bought that same property nearly 20 years later at a foreclosure sale. Their deed did not include the “southerly thereof” language.

Saturday, May 17, 2014

Judging the Judge

In re Balivet, 2014 VT 41

By Andrew Delaney

Four justices were specially assigned for this per curiam (that’s fancy lawyer talk for “by the whole court”) opinion. And why not?

Usually a judge has his or her decisions and rulings scrutinized by the SCOV. Today’s decision is a little different because the SCOV is looking at this judge’s conduct specifically.

In Vermont, lawyers have rules of professional conduct; judges have a code of judicial conduct. One of the judicial canons requires that judges “dispose of all judicial matters promptly, efficiently and fairly.” This case is about whether respondent met that standard. 

Thursday, May 15, 2014

SCOV Goes to the Dogs

Hamet v. Baker2014 VT 39

By Jeffrey M. Messina

In a divorce proceeding with no minor children and an amicable agreement on the division of property and other financial issues, SCOV's job is to determine which spouse receives the family pet. Hot dog!

The lower court based its decision on which spouse was most active in caring for the dog during the marriage. The court also said the family division would not enforce a shared visitation schedule even if the parties agreed to it. As expected, during the hearing, the parties testified to each’s strong emotional ties to the dog and the extent to which each provided care. Husband is a veterinarian who takes dog to work with him; wife spends time walking the dog in the woods near the home and is involved in the daily care of the animal.

Tuesday, May 13, 2014

Keep Your Eye on the Ball

In re B.R., 2014 VT 37

By Elizabeth Kruska

I know some attorneys who would rather poke themselves in the eyes with screwdrivers than appear in juvenile court.

That, my friends, is too bad.

Juvenile court is incredibly important. As a society, we recognize that little kids can’t fend for themselves, and that if something is going wrong, that somebody needs to step in and help. We want kids to be safe and okay and to grow into awesome, successful adults. 

Sunday, May 11, 2014

Fuller Factual Findings

State v. Whiteway, 2014 VT 49 (mem.)

By Andrew Delaney

It might seem like we wrote about this case last week because . . . we wrote about this case last week. To be fair, the SCOV handed that decision down a little under a month before the current one. (Hey—we’re a little behind here.)

If you recall that decision, the SCOV reversed the trial court’s denial of defendant’s home-detention motion because the court really honed in on the fact that defendant’s charged with second-degree murder and didn’t appear to consider the other requisite factors in deciding the motion.

So, the case goes back to the trial court, the trial court reconsiders the motion, and the trial court again denies the motion. As Yogi Berra would say, “It’s like déjà vu all over again.” 

Something Missing . . .

State v. Bolaski, 2014 VT 36

By Andrew Delaney

Defendant gets his second-degree murder conviction reversed without getting to the final issue he raises in the case. So what happened?

The SCOV recounts the trial testimony in a qualified way, noting that the testimony was “not entirely consistent” and that it will “summarize the largely undisputed facts in as general terms as possible.” The SCOV does note that important-to-this-appeal factual disputes will be highlighted.

The entire incident happened at a softball field in Chester, Vermont. The Boston-native victim had been living in Springfield, Vermont—in what some might call typical Vermont fashion—at his girlfriend’s mother’s home. He did not play well with his girlfriend’s friends and acquaintances, apparently. He stole a bag of weed and later punched a guy in the jaw while a bunch of people watched. This event precipitated the softball-field confrontation.

Saturday, May 10, 2014

Nothin' to see here, folks

In re MaGill, Esq., 2014 VT 47 (mem.)

By Andrew Delaney

Respondent, an attorney, "filed an affidavit of resignation supported by a statement of facts from disciplinary counsel." The SCOV accepts the resignation and disbars respondent. That's it.

Tuesday, May 6, 2014

Reach Out (With Your Long Arm) And Touch Someone

Pahnke v. Pahnke, 2014 VT 2

By Elizabeth Kruska

I was a 1L sometime between when the earth cooled and when the first iPhone was released for sale. That is also roughly the last time I thought about hot civil procedure topics like personal jurisdiction. When I originally read this case and saw that it cited to International Shoe, I had the same reaction as when I first read that case in law school: “International Shoe” is a funny name for a corporation. I know it’s about long-arm statutes. It’s still a funny name. 

But, really, I'm just guessing here . . . .

State v. Nugent, 2014 VT 4

By Scott R.Williams

Sometimes it is the briefest of decisions that provide us the most fodder for our opinions.


Today’s decision by the full Court is barely a few pages long, yet addresses an issue vexing to many a defense attorney. It involves Vermont’s statutory scheme for “civil suspensions” in the context of DUI allegations.

Sunday, May 4, 2014

Hands Off the Bennies!

Manning v. Schultz, 2014 VT 22

By Christopher A. Davis

Can a court award money to one party in a divorce to offset the difference in the parties’ projected Social Security benefits? No, it can’t.

Husband and wife file for divorce. They don’t agree on how to value their stuff and end up arguing over how to divide it all up. Wife submits a list of assets that credits a big chunk of money to husband’s suggested share of the marital estate for the difference between the present value of the parties’ projected Social Security benefits (his are more valuable, according to her accountant). Trial court finds her proposed property division as set forth in her list of assets to be reasonable, and allows her to pick between two options she submitted for proposed property division and spousal maintenance. Husband appeals.

That doesn’t count!

Cook v. Coburn, 2014 VT 45

By Andrew Delaney

This appeal is all about what “counts” as a marital asset.

Husband and wife were married for about 13 years before they separated. They met when then-wife-to-be hired then-husband-to-be to build a ten-stall addition onto her barn. Wife had started a horse stabling and training business several years earlier. Husband later moved in with wife. At the time of the parties’ separation, the property was valued at $260,000.

Husband has been a dairy farmer, farrier, and builder his entire adult life. People fall in love for all kinds of reasons, but I’m guessing this relationship was born of a love for horses. Hey, I married a horse lady—trust me on this one. Husband here very well might’ve been her first choice.

Long-Distance Love Leads to Lengthy Litigation

Patnode v. Urette, 2014 VT 46

By Andrew Delaney

People often say that long-distance relationships just don’t work out. Today’s case doesn’t deviate from that rule, but there’s also a kid involved, which means a lot more paperwork.

Mom lived in and continues to live in Vermont; dad lived in and continues to live in Florida. Mom and dad were in a long-distance relationship for several years. At some point the birds and the bees ended up in the picture, which led to a visit from a stork. I never got a clear explanation of this phenomenon during my own childhood.

Saturday, May 3, 2014

Flawed Fixation (It’s just that one thing . . .)

State v. Whiteway, 2014 VT 34 (mem.)

By Andrew Delaney

When a statute provides a number of factors to consider, it’s important to avoid fixating on just one.

Defendant was charged with second-degree murder and held without bail. She received a weight-of-the-evidence hearing. The trial court decided to hold her without bail. She didn’t appeal.

A year later, she filed a motion for pretrial home detention. The pretrial home detention statute allows home confinement when a defendant is held in a “lack of bail” situation for more than seven days. It provides 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.

Lacking on Linkage to Liability

Murphy v. Sentry Ins., 2014 VT 25

By Andrew Delaney

Plaintiff was handed a defeat snatched from the jaws of victory. After a jury trial, the jury found defendant insurance company liable for plaintiff’s husband’s workplace death. But the trial court vacated that verdict and entered judgment as a matter of law for defendant. Oof.

Let’s look at what happened.

Plaintiff’s husband worked for an RV dealership. He died from a forklift accident that occurred while he was using an unapproved forklift attachment to tow a fifth-wheel camper. Plaintiff sued the dealership’s general liability insurer, alleging that it was negligent in the inspection it had performed two years before the accident—that the insurer “failed to identify and warn of the dangers of using forklifts with unapproved towing attachments”—and that this negligence caused husband’s death.