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


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.

Friday, July 11, 2014

Paid in Full?

In re Grievance of VSEA, 2014 VT 56

By Andrew Delaney

Nobody likes not getting paid.

When Tropical Storm Irene hit, the Waterbury state office complex got hit particularly hard. Many of the buildings still can’t be used. There was a one-day government shutdown, and then in the immediate aftermath, various work arrangements had to be made because the Waterbury complex was generally unusable.

It was a trimmed-down scenario while things slowly returned to somewhat normal. Generally, the complex employees were told not to come in unless their supervisor called them in. “Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations.” 

Sunday, July 6, 2014

Extraordinary Enough or Much More Mundane?

State v. Fontaine, 2014 VT 64

By Andrew Delaney

This case is a little odd. Basically, defendant pled guilty to a charge of lewd and lascivious conduct with a child (defendant’s younger sister), there was a presentence investigation, a psychosexual evaluation, and a sentencing-hearing meeting between the judge and the victim (who was sixteen years old at the time of sentencing) without the State or the defense present.

At sentencing, the defense sought testimony from victim, and suggested the trial judge meet privately with her. The State objected to such a meeting, though it agreed “to allow the victim to express her preference [as to testifying] to the Court outside the presence of counsel.” The judge asked if anyone “would object to my meeting briefly with [the victim] to find out exactly what her comfort level is,” and the State said it had no objection.

A Time to Kill

State v. Johnson, 2013 VT 116

By Ember S. Tilton

This is a story of murder . . . but it's no Grisham novel. Actually, it's more of a story of how to get a life sentence by not being a very "good" villain.

Edward Johnson was never cut out to be a notorious villain or a feared evil mastermind. No, Mr. Johnson was more of a looking-for-life-in-prison type of guy. His botched criminal endeavors began, like so many others, on the streets of a quaint little town smack-dab in the middle of our beloved state, in—you guessed it—the one and only, Barre, Vermont. (For all youse guys from out of state, that's pronounced "Bear-ee.")

Whole Lot of Opining Going On

Lasek. v. Vermont Vapor, Inc., 2014 VT 33.

By Nicole Killoran

Ready your tastebuds, folks. This case has a sprinkling of evidence, ethics, and torts all in one. The subjects of the suit are a fire in a commercial building, two tenants, and a landlord. Defendant landlord and co-defendant tenant won at trial for a variety of reasons. The questions of what caused the fire and whether plaintiff, the other tenant, should have won instead get us to the SCOV.

Tenant, Vermont Vapor, leased a space in the southwest corner of a building where its owner mixed liquid nicotine for e-cigarette fillers. Father tricked out an enclosed “clean room” lab within the building that vented to the outside, and worked with his son there. The room was oh-so-precariously poised underneath an industrial space heater that had been suspended from the rafters and connected to a propane tank to run the lab in the winter.

The Bar Admission Blues

In re Hirsch, 2014 VT 28

By Andrew Delaney

This case is about how not to get admitted to the Vermont bar.

Applicant’s first go at admission was in 2004. The Character and Fitness Committee denied his application on the basis that he didn’t demonstrate fitness to practice law, and he appealed. The SCOV appointed a commissioner to hear the appeal pursuant to some rule on admission that I’ve never read . . . uh, because the rules have changed since then.

The commissioner agreed with the Committee that applicant should not be admitted, but recommended that applicant be allowed to reapply if he got mental-health treatment for a year, complied with treatment recommendations, and gained insight into his illness and the need for ongoing treatment.

Tuesday, July 1, 2014

The Court's Calculator

State v. LeClair, 2013 VT 114

By Ember S. Tilton

In this unanimous decision, the SCOV agrees with Prisoner's Rights. I'll spare you the math for the most part and get down to the nuts and bolts of the legal controversy. Mr. LeClair had been bad. Actually, he was bad over and over again. Finally, in an effort to deal with his multiple cases and settle the whole business of his numerous criminal charges, the State made a global offer involving some amount of jail (again, I will spare you the numbers).

The issue arose out of one of his cases that had been in drug court. Drug court is a program similar to probation where a defendant receives a sentence but does not serve the sentence so long as that defendant complies with the drug court's instructions. Drug court instructions might include things like looking for a job, going to meetings, getting clean, or finding a new apartment. Like probation, there are conditions and when those conditions are violated a defendant may lose their drug-court eligibility and be made to serve the entire underlying sentence or part of that sentence. One major difference between drug court and probation is that a judge acts like a probation officer and the defendant must discuss their life, progress, or failures in front of a group in a fairly court setting. The program achieves a great deal of success with some defendants but Mr. LeClair was arguably not one of them.