Saturday, January 31, 2015

Brotherly Brawl

State v. Noyes, 2015 VT 11

By Andrew Delaney

I have a brother. When we were kids, we’d have some serious knock-down, drag-out fights. Now that we’re (allegedly) adults, there’s a lot less choking and punching in the face going on. Looking back, though, it’s a wonder that we didn’t end up with criminal charges from some of our tussles.

Mr. Noyes was not so lucky in the not-getting-charged department. He had a fight with his brother—presumably over whether brother had been suggesting that Mr. Noyes was having an affair with his stepdaughter—and was convicted of disorderly conduct and simple assault by mutual affray.

As the SCOV puts it, “Various witnesses provided conflicting accounts of the altercation.” The fight started at Mr. Noyes’s home and moved outside. Mr. Noyes’s daughter remembered brother as the aggressor. The stepson remembered it as a mutual thing. Brother, naturally, claimed Mr. Noyes was the aggressor. A neighbor made a bunch of conflicting statements, and her testimony included a signed statement with an after-the-fact notarization.

Sunday, January 25, 2015

Back to the Future "At-Will"

Nelson v. Town of St. Johnsbury, 2015 VT 5

By Andrew Delaney

Town manager gets fired and sues. His claims get tossed on summary judgment. The SCOV reverses on some claims and affirms on others. Almost the entire case comes down to a nearly-one-hundred-years-old statute.  You never know what's gonna happen at the SCOV.

Mr. Nelson served briefly as St. Johnsbury’s interim town manager. He was then formally hired by the selectboard, without any specific employment terms. Mr. Nelson claimed that the town’s attorney, on three separate occasions told him that he could only be removed for serious misconduct, which the town attorney opined was “an extremely high bar.”

As town manager, Mr. Nelson undertook a major building renovation project. The selectboard had concerns about Mr. Nelson’s performance and started an inquiry. Mr. Nelson got a letter from the chair, which basically said he had to cooperate or it could be considered misconduct. The letter didn’t specify the inquiry’s nature.

You’ve Lost That Loving Feeling

Davis v. The American Legion of Vermont, 2014 VT 134

By Jeffrey M. Messina

The American Legion, karaoke, a four-year-old granddaughter, a six-dollar entry fee, and a protective grandmother. What could possibly go wrong?

This case comes to SCOV on appeal from the trial court’s grant of defendant’s motion to dismiss, in a case stemming from a very brief night out at the American Legion for plaintiff and her four-year-old granddaughter.

While I'm sure every night at the American Legion is a party, karaoke night is sure to be extra special. On this particular evening, plaintiff—a member of the Barre Post-10 Auxiliary Unit— brought her four-year-old granddaughter to Post-10 hoping to have her sing. Regrettably, the little girl’s dreams of stardom were dashed when a member of the staff asked them to leave. Apparently, a Post-10 club rule explicitly prohibits minors at the club after 7 p.m. without special permission of the House Committee.

What is a Post? An Auxiliary? House Committee? I'm glad you asked. Try to keep up . . .

Problematic Presentation PCR

In re Williams, 2014 VT 67

By Hannah Smith

In what reads like the plot of Every Defense Attorney’s Worst Nightmare, the SCOV upholds the decision of a post-conviction relief (PCR) court finding that an attorney failed to provide his client with adequate representation.

This case began more than a decade ago, with a tragic series of events. On October 2, 1999, a fire broke out in an apartment complex in Milton, Vermont. The fire spread quickly, killing the upstairs tenant and her three grandchildren. The subsequent police investigation revealed the fire originated in the petitioner’s bedroom; petitioner admitted during a police interview that he had unintentionally started the fire by lighting paper on fire in his wastebasket. 

Friday, January 23, 2015

Custody Conundrum

In re E.W., 2015 VT 7

By Elizabeth Kruska

Kids aren’t miniature adults. Conceptually, we all know this. There are some things kids understand, and there are some things that we, as adults, have to explain to kids in different ways so that they understand. I often tell people that the so-called Miranda warnings are the best recognized piece of American criminal procedure, but they’re also the most commonly misunderstood. I’d be rich if I had a dime for every person who said to me, “well, they never read me my Miranda rights, so that means I win automatically, right?” That happens because people don’t understand Miranda. And imagine – if grown-ups are saying that, how confusing it might be for kids.

That’s why we have slightly modified expectations when it comes to the use of Miranda for kids. And that’s also why E.W.’s delinquency case got reversed.

Adverse Acquisition and Associated Accusations

Roy v. Woodstock Community Trust, Inc., 2013 VT 100A

By Nicole Killoran

Neighbors. Such a blessing, aren’t they? Always friendly, comfortable with change, and certainly never interested in interfering with the new guy’s plans for the property next door.

In fact, as those who are in the “lines” and land-use business can attest, the sanctity of property rights and zoning ordinances translate to a different reality. Neighbors can actually be the source of some of the most noisome and drawn out cases.

Take this case, for example. In 2005 the Woodstock Community Trust bought two abutting parcels of land in Woodstock from a church that owned them. The Trust is a nonprofit in the business of building affordable housing in Woodstock. It applied for permits to build a residential development on the property.

Thursday, January 15, 2015

Estoppel! In The Name Of Love

In re Bernice Landry2015 VT 6

By Elizabeth Kruska

Who loves filling out insurance forms? Nobody! (If you are someone who loves filling out insurance forms, feel free to leave a comment below. I anticipate zero comments.) But sometimes you fill out insurance forms in the name of love, like if your mama is 87 and has diagnoses of dementia and Alzheimer’s disease. Those are terrible things. Those are also a pretty apt description of Bernice Landry.

Bernice’s daughter (Daughter) was her power of attorney and had authority to act on her behalf. In January 2011, she filled out some Medicaid forms for Bernice and submitted them to the State. She sought coverage, plus three months of retroactive benefitsso, going back to October 2010presumably to help pay for Bernice’s stay in a nursing home, which started in September 2010. Three months’ worth of benefits retroactive to the time of application can be granted.

Tuesday, January 13, 2015

Definition Debate

In re M.K., 2015 VT 8

By Elizabeth Kruska

My favorite movie is The Princess Bride. One of the best parts (Okay, who are we kidding? All the parts are the best parts) is when Vizzini keeps exclaiming, “Inconceivable!” and Inigo Montoya finally responds, “You keep using that word. I do not think it means what you think it means.”

In this case, a child in need of supervision (CHINS) case was filed, alleging that M.K. was the subject of abuse. Briefly, the facts alleged were that M.K. and his mom were walking in a driveway, that M.K. dropped a toy he was carrying, and that his mom “lost it” and tossed him to the ground. This all occurred behind their apartment building, which had a video surveillance system. The video system recorded the incident, which was used by the State at trial to help prove the CHINS case. The juvenile court made a CHINS finding relative to M.K. M.K.’s younger sibling was also present during the incident, and although the state filed a CHINS petition relative to that child, the court didn’t make a CHINS finding there.

Mom appealed. She said first of all, that there wasn’t enough evidence to support the CHINS finding relative to M.K.

Sunday, January 11, 2015

It's Not How You Say It; But Rather, What You Really Say

Guntlow v. Pownal, 2014 VT 118

By: Jeffrey M. Messina

Taxpayers appeal the trial court decision affirming the board of abatement’s (board) denial of their requests for tax abatement. SCOV does the three-step in-part dance: affirm, reverse, and remand.

For the periods of 2005 through 2011, taxpayers sought abatement of property taxes on many contiguous properties they owned, and they came before the abatement board on three separate occasions in their attempts. At first, the board denied the request, but later realized it didn't have a quorum. Whoops. At the second hearing, the board also nixed the request; however, because the board did not explain its reasons for the denials, the superior court sent it back to the board to provide written detail or hold a new curative hearing.

Incomplete Invocation of Indemnification

Heco v. Foster Motors, 2015 VT 3

By Andrew Delaney

I think it would be more fun if we referred to indemnification generally as the pay-my-bills doctrine, but I guess it doesn’t sound as lawyerly. “Your Honor, my client is clearly entitled to invoke the pay-my-bills doctrine here” doesn’t have the same ring to it as, “Your Honor, my client is clearly entitled to indemnification.” Ah, well.

Neither of the named parties really have anything to do with this appeal. As alluded to above, this is a dispute between Midstate Dodge, LLC and Johnson Controls, Inc. (JCI) over indemnification.

But the background helps lay out the playing field. Plaintiff was severely injured when her Dodge Neon was rear-ended. She sued Midstate (which sold her the car); the manufacturer of the car (Chrysler Group LLC as successor-in-interest to the now-bankrupt Chrysler Corporation); JCI (manufacturer of the seat); and the seatbelt manufacturer. The gist of her claim was that the restraint system was garbage and caused her spinal-cord injuries. It seems as though the seatback collapsed, which it ought not to have.

Friday, January 9, 2015

Snip, Snip, Snip

Skaskiw v. Vermont Agency of Agriculture2014 VT 133

By Elizabeth Kruska

Vermont has a program called VSNIP that provides subsidized spaying and neutering for people’s pets. Everybody should get to have a pet if they’d like, because pets pretty much rule, and spaying or neutering the pet is the responsible thing to do. But it’s expensive, so a subsidized program for spaying and neutering pets helps make the procedure affordable for those who otherwise couldn’t afford it. From what I can glean from the opinion, it’s a state-run program but private organizations bid on a contract to provide the services.

Originally, Vermont Volunteer Services for Animals Humane Society (VVSA) had the state contract to provide the VSNIP, ah, snipping, shall we say. It used to be run by the Agency of Agriculture, but in 2011 was shifted to the Department for Children and Families (DCF). When DCF took over the program, it put out the contract for bid. VVSA bid on the project. So did VT-CAN! (This is not explained in the opinion, but I infer that VT-CAN! is another animal organization in Vermont.) DCF ultimately awarded the contract to VT-CAN!

Monday, January 5, 2015

Trustee Process Run Amok?

Stroup v. Doran, 2014 VT 92

By Jeffrey M. Messina

This case is about the limits of what Trustee Process can do for a judgment creditor, stemming out of an appeal from an order of the Superior Court denying Plaintiff’s motion for default judgment (DefJay? Def Jam!?! Never mind . . .) against Trustee Brattleboro Savings and Loan (“BSL”).

Plaintiff won a judgment against Defendants for breach of contract, fraud, and consumer fraud after Defendants failed to perform landscaping. When Defendants failed to pay the judgment, Plaintiffs obtained a writ of execution, and the court approved Plaintiff's motion for Trustee Process to attach funds owned by Defendants and held by BSL.

BSL disclosed that it held the balance of $2,853.05 in a checking account in the name of one of the Defendants, and the parties stipulated that BSL would release $750 to Plaintiffs, and be discharged as Trustee - with Defendant’s account free of any lien or charge. Defendants also agreed to pay $3,500 to Plaintiffs before January 31, 2008. BSL paid the $750, but you can already see what’s coming next: Defendants never paid the remainder of the debt.

Big Brother & Its Holding Company (or "Hey, Hey, I’m the Tax Man")

Quazzo v. Vermont Dept. of Taxes, 2014 VT 81

By Jeffrey M. Messina

In this case, I take the bold position of saying almost everyonethe Tax Department as well as SCOV (save for a single Justice)is wrong on this one. Bravo, Justice Skoglund, bravo. Now, I suppose, on to the case . . .

This case is about a taxpayer (“Taxpayer”) appealing a decision from the Commissioner of Taxes (the “Commish”) who held the Taxpayer failed to prove a change of domicile to obtain a homestead property tax adjustment on his Vermont residence for 2007 through 2009. Taxpayer contends the Commish erroneously treated this case as one involving a “change of domicile” rather than “maintenance of a domicile;” the difference between the two resting on the burden of proof: specifically, the taxpayer had to prove by clear and convincing evidence that he had, in fact, changed his domicile to Vermont (rather than by a preponderance that he maintained the domicile)despite his declaration which the Department of Taxes had not earlier challenged that Vermont has been his domicile for years. Taxpayer also argues the Commish’s conclusions were not supported by her findings.