Saturday, February 28, 2015

F is for Foreclosure

TBF Financial, LLC v. Gregoire, 2015 VT 36

By Andrew Delaney

Sometimes an opinion can be a little confusing. As the SCOV notes at the get-go, “The history of these consolidated cases appealed from Washington and Caledonia Superior Courts is unusual and convoluted.” Great—the SCOV (they’re smart) says it’s “unusual and convoluted,” and I am not a smart man. You’re going to have to bear with me here.

Defendants, the Gregoires, owned four multi-family rental properties—three in Washington County and one in Caledonia County—and loans with the bank were cross-collateralized and secured by the four properties. We could get into the whole “bank”-really-means-a-couple-different-entities thing but that’d just make this more painful than it has to be. In 2010, the bank filed foreclosure complaints. Then the parties entered a forbearance agreement, which meant that the Gregoires retained control of the properties, but the tenants paid the bank directly.

Friday, February 27, 2015

Pay Your Rent, Clean Your Room

Walsh v. Cluba, 2015 VT 2

By Amy Davis

This is a straightforward landlord-tenant case with so many unnecessary twists and turns that would make for a good Pacific Heights sequel. Show of hands for those who remember Matthew Modine. Seeing no hands . . . the gist of this case is that it’s a landlord-tenant dispute, but the tenant becomes a corporation at some point, leaves the premises damaged, and gets sued for contract and tort problems. But, the lawyers have to amend the pleadings a couple of times before we know who gets sued for what. Clear as mud? Good. Here we go.

Plaintiff, landlord David Walsh, and defendant, tenant, Frank Cluba, enter into a three-year lease agreement back in 2004 where Walsh rents Cluba a commercial space on Church Street. Two months after they sign the agreement, Cluba and his business partner incorporate Good Stuff, Inc., an adult novelty shop (insert 50 Shades of Grey reference here). The lease expires in August 2007, but Good Stuff continues occupying the space and pays rent up until leaving in August 2009not an issue here because of a month-to-month provision of the lease. 

Thursday, February 19, 2015

Enough is Enough

State v. Hughes, 2014 VT 112 (mem.)

By Timothy Fair

It's not often in life that one finds themselves being given a break. When it does happen, it's usually best to thank the moon or the stars or whatever it is that works for you. The last thing anyone should do is spit in the proverbial eye of your benefactor. Especially when that benefactor is the judicial system. Our case today sorta illustrates the wisdom of that advice.

The appellant in this case was arraigned on one count of aggravated domestic assault, a felony, and one count of domestic assault, a misdemeanor, on August 25th. In Vermont, when an individual is arraigned on a criminal charge, the State has the option of requesting bail, or in more serious cases, requesting that the court hold the defendant without bail. There is statutory law which spells out precisely the grounds on which bail may be set, as well as what grounds must be met for a defendant to be held without bail. The down and dirty version goes like this: bail can be set if the court finds reasons to believe that the defendant will fail to appear at future court hearings, and that the defendant poses a substantial threat to the public. It's actually a little (or a lot) more nuanced than that, but that's the gist of it. In order to be held without bail, a defendant must find him or herself being charged with either a crime that has a maximum penalty of life in jail, or a felony-level crime involving violence to another. Additionally, there must be a determination by the court that the evidence of guilt is great and that the defendant poses a significant risk of physical violence to any person. Just how one establishes that the “evidence of guilt is great” at an arraignment is a whole 'nother subject that we'll save for a future installment.

Tuesday, February 17, 2015

Let’s Not Get Too Technical

State v. Grenier & State v. Harris, 2014 VT 121

By Christopher A. Davis

In these consolidated cases, defendants Grenier and Harris appeal the trial court’s denial of their motions to suppress breath alcohol test results obtained by the DataMaster DMT machine.

Grenier was arrested for DUI on May 22, 2010, and Harris on February 8, 2011. Defendants moved in their respective cases to suppress the evidentiary breath-alcohol tests results (the one that’s admissible in court and typically is given during processing at the station, not the inadmissible roadside one that’s used for probable cause to arrest someone), arguing that: (1) the Vermont Commissioner of Health (“Commissioner”) did not approve the DataMaster DMT machine used to obtain the evidentiary breath-alcohol results as required by statute and Vermont Department of Health (“DOH”) rules; and (2) admission of the DMT results would violate defendants’ due process rights under the U.S. and Vermont constitutions because of alleged ongoing mechanical problems with the machines and unprofessional practices by DOH employees. Defendants requested an evidentiary hearing on these arguments.

Dispute Over Sewage System Creates a Mess in Probate Proceeding

Hayes v. Town of Manchester, 2014 VT 126

By Andrew Higley

If you build it, well . . . the townsfolk will use it. In this case, a privately owned sewage system and two roads. The issue is whether the Town of Manchester is entitled to money from an Estate, in the form of a constructive trust, to inspect and maintain that sewer system. On top of that, a group of homeowners want the Estate to continue paying for maintenance of two private roads. They are arguing that certain evidence at trial was improperly excluded under the morbidly named “Dead Man’s Statute.” Sidenote: I think that would make a great title to an Edgar Allan Poe story.

What originally began as one lawsuit, the Town of Manchester (“Town”) against the Hayes Estate (“Estate”), mushroomed into different lawsuits after a group of homeowners “intervened.” This is basically a procedural mechanism that allows other parties to join in on the fun (speak now or forever lose your claim). So, there are actually two suits here: (1) the Town versus the Hayes Estate; and (2) the Homeowners versus the Hayes Estate. 

The Presence or Absence of Take-Backsies, and Related Conversations

Choiniere v. Marshall, 2014 VT 117

By Christopher A. Davis

The issue in this case is whether genuine issues of material fact exist in a long-standing contract dispute that would allow the plaintiffs’ claims to proceed beyond the summary judgment phase to trial. Lower court says no. SCOV says yes. GAME ON, LITIGANTS.

Let’s head back together to September 2003, when Paul Choiniere and P & D Consulting, Inc. loaned Andrew Button $1 million to help him purchase an automobile dealership. Button’s father and stepmother Christine Rowe-Button personally guaranteed the loan. After receiving the loan, Button the Younger began negotiating with Choiniere for an additional $1.3 million loan because I guess three automobile dealerships are better than one. During those negotiations, Button’s father passed away, and stepmother Rowe-Button did what any nurturing step-parent would do in this time of familial uncertainty…she hired a lawyer to settle her husband’s estate and attempt to cut ties with the debt guaranteed to Choiniere. After months of back-and-forth between Rowe-Button’s attorney Anthony Marshall and her stepson’s attorneys (understandably uneasy about the cessation of Button’s credit line), Marshall arranged for Rowe-Button to send out a “Termination of Guaranty” letter on April 8, 2004 (we’ll call it the “April 8 Letter”) to each of the creditors, which stated that her signature on the original guaranty “may not reflect my actual signature thereon,” and also set out in ALL CAPS that any guaranties provided or purportedly executed and provided (if that IS your real name!) by any entity owned by the elder Buttons were thereby terminated.

Monday, February 9, 2015

In Trust We Trust

In re PRB Docket No. 2014.168, 2015 VT 9 (mem.)

By Elizabeth Kruska

Lawyers are supposed to maintain special bank accounts, called client trust accounts, as the accounts in which client funds are placed. If someone hires a lawyer and pays him or her a retainer for the lawyer to bill against, the funds are still technically the property of the client unless and until the lawyer bills the time. For example: you hire me to represent you in a case and I request a retainer of $5000. The $5000 technically belongs to you until I earn it, but I’m holding onto it in trust in my special bank account. Suppose then I do a bunch of work and by doing so, earn $1000. I then move that earned money into a different account, which later pays me. Suppose then the case gets done at that point and there’s still $4000 left. You get that back.

Sound complicated? It is and it isn’t. Conceptually, it’s pretty easy. In practice, it can get to be a lot of work. If you’re a lawyer with 25 clients with money in trust accounts, not only do you have to keep track of the work you do and your time, but also how much money is in the trust account that is attributable to each different client. You can’t use Client X’s money for expenses of Client Y if Y is out of money. Also, you can’t combine a client’s funds with your own operating funds. If you need to pay the power bill and the only money you have is in the trust account, do not use the client money to pay the power bill, even if you know you’ll earn it later anyway. If you’re a solo practitioner or a small firm, you might find that staying on top of all this is almost like a second job.

Sunday, February 8, 2015

Bail-Review Blues

State v. Weaver, 2015 VT 35 (mem.)

By Andrew Delaney

Mr. Weaver was held without bail on charges of felony aggravated domestic assault and unlawful restraint. When a person is held without bail, they have a statutory right to a second, evidentiary hearing before a single justice of the SCOV. That justice can be a specially assigned judge or retired judge or justice.

It’s supposed to be a set of fresh eyes and independent of the first hearing. In this case, it seems there’s not really a factual challenge from the first hearing, though this time Mr. Weaver brought in his fiancée to testify.

So, here’s what happened. Mr. Weaver met complainant in June of last year, and they hit it off. Then complainant claimed she was pregnant, and Mr. Weaver moved into a tiny two-bedroom apartment with complainant, her roommate and the roommate’s boyfriend, and complainant’s son from a previous relationship.