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.