Saturday, May 30, 2015

Speak now or forever hold your peace

Stratton Corp. v. Engelberth Construction, Inc., 2015 VT 75

By Andrew Delaney

It’s always important to object to something you don’t want to happen in a timely manner. This is true for weddings and business litigation, among other things.

This is the second case with these primary parties issued in the past few weeks. The first one is here. Like the first case, Stratton was the developer and Engelberth was the general contractor for a condominium construction project. Even the catalyst for the litigation is similar—leaky roofs. This case appears to involve a different project, however, and the result and appellant are different—that’s for sure.

Let’s take a look. In 1998, developer hired general contractor “to build a 143-unit condominium complex.” Construction began in 1998 and was substantially completed by 2000. “The complex began showing signs of water leakage as early as November 1998, and leakage problems persisted throughout the remainder of the construction.” In 2007, developer settled with the condo association for approximately $7M. I assume developer wasn't too happy about that.

Be the Squeaky Wheel

Stratton Corp. v. Engelberth Construction, Inc., 2015 VT 69

By Andrew Delaney

It all starts when the roof leaks. And it ends in a hurry if you don't speak up.

Our tale today comes from a dispute between developer (Stratton), general contractor (Engleberth), and a subcontractor (Evergreen Roofing) involved in a condominium construction project. The ultimate lesson is that you need to raise issues at trial or the appeal is not going to go your way.

Back when the project started, developer bought some insurance for the project that usually gets called “wrap-up” insurance. It generally covers most if not all parties performing work at a particular site. There was a general-contractor-indemnifies-developer provision that included an obligation for general contractor to indemnify on behalf of subcontractors as well as itself.

So, general contractor hired subcontractor to do the roofing. That contract required that subcontractor indemnify general contractor. For those keeping score at home, the arrangement amongst the parties is illustrated by the first rule of plumbing.

Thursday, May 28, 2015

The Fab Six(th Amendment)

State v. Alers2015 VT 74

By Elizabeth Kruska

You know the footage of when the Beatles appeared on the Ed Sullivan Show? You know, the one with the teenage girls squealing and jumping up and down? Well, that’s how I get when I read a new appellate opinion about the Confrontation Clause. OK, maybe not exactly like that, but I get pretty excited. I teach a criminal procedure course at Vermont Law School as an adjunct professor, and I often tell my students the Sixth Amendment is really secretly the best Amendment. Sort of like how George was secretly the best Beatle.

Generally speaking, evidence admitted in a trial is governed by the Rules of Evidence. There is a set of rules about hearsay. I think of it like this: hearsay is not admissible except for when it is. That’s why Evidence is a full semester class in law school and people walk away just about as confused as when they started. In any case, one of the exceptions to the hearsay rule is the “excited utterance” exception. If someone is experiencing the excitement of a situation and says something, chances are good that the statement is reliable because he or she is still experiencing the excitement of the situation. When the teenage girls were jumping up and down screaming and crying for the Beatles, none of them were calmly saying, “I don’t fancy Paul,” partly because they were all under the excitement of seeing the Beatles, and also because Paul was the cute one. I think it’s fair to say the girls who were screaming, “I love you Paul!” pretty much really meant that.

Monday, May 25, 2015

Retroactivity & Reimbursement

Rathbone v. Corse, 2015 VT 73

By Andrew Delaney

A derivative SSDI benefit—in this context meaning a social security payment to a child due to a parent’s disability—counts against a child-support obligation. There’s a case recent enough to be in our archives that says that, and it gets mentioned a lot in this opinion, so it must be important.

The parties never married but did have a child. Mom ended up with sole parental rights and responsibilities and dad ended up with a monthly obligation for child support. It appears he didn’t always show up for court, which might explain why he had the obligation he did. A couple wage-withholding orders ensured that dad kept up with payments.

Eventually dad filed a motion to modify in 2013. As it turns out, he became disabled in 2009, and the derivative benefit started back then too. Citing that case we talked about like a paragraph-and-a-half ago, the magistrate reasoned that dad was entitled to credit for overpayment of nearly $15K. Basically, the derivative benefit was pretty much the same as dad’s obligation, so it sorta meant dad was covered and essentially double-paying when he’d make payments.

Sunday, May 24, 2015

Speculation and Semantics

MacCormack v. MacCormack, 2015 VT 64

By Amy Davis

While I am counting this current blog as a constructive way to procrastinate (unlike watching Dexter for the fourth time), this will be the last of my witticisms and criticisms until post-bar exam. So, read up and/or wish me luck!

Dad is ticked about the trial court’s award of PRR to Mom, as well as the trial court’s calculation and division of marital assets. Also, the trial court applied a hypothetical real-estate commission calculation to the property division. What the hell? More math? Mom is ticked about the PCC order not achieving the stated goal. Spoiler alert: everything gets affirmed except the hypo-real-estate stuffs.

This was a rocket-docket Kim Kardashian marriage: short lived and unentertaining. Mom and Dad met in June 2006, started dating, and then married in July 2008. Despite agreeing there was a “lack of intimacy” during the marriage, they managed to make a baby, born in December 2009. (Free sex-ed lesson: reproducing requires some form of intimacy . . . or a turkey baster).

Income Imputation Issues

Patnode v. Urette, 2015 VT 70

By Andrew Delaney

Long-distance relationships are never easy. Add a child to the mix and things can get exceedingly difficult. This is the third SCOV opinion in the five years since this one fizzled out (I almost said “went south” but as dad lives in Florida, that seemed unfair).

So, the last time the parties were at the SCOV, we said something like the SCOV “dodges this bullet” in avoiding a child-support issue not properly before it. On reflection, we probably should’ve said something more along the lines of “avoids the inevitable.” The parties have a nine-year-old daughter together. Mom’s primarily a Vermonter; dad’s primarily a Floridian. The SCOV articulates the parties’ relationship thusly: “After their break-up, mother filed this parentage action in 2010 and the parties have been engaged in litigation regarding parent-child contact and child support ever since.” Good times.

This appeal is, as alluded to above, about child support. Specifically, mom says the trial court should’ve imputed income to dad because dad has an interest in a business and it made property sales in 2008 and 2010.

Sunday, May 17, 2015

"Back" to the Future: Part II

Marshall v. State, 2015 VT 47A

By Andrew Delaney

This opinion, which we reported on just a couple weeks ago, “differs from the original opinion only in ¶ 21 and the mandate.” If you haven’t already read that summary, shame on you.

So what’s this update all about? Well, in the original opinion, the SCOV reasoned that Mr. Marshall wasn’t entitled to further permanent-partial-disability benefits, and therefore didn’t get attorney’s fees because he didn’t “substantially prevail,” which as all o’ y’all know, is required for an attorney’s-fee award in a worker’s-compensation case. In paragraph 21 of this opinion, the SCOV notes that the superior court’s determination that Mr. Marshall is entitled to further medical benefits actually stands, and so the superior court needs to reassess attorney’s fees in light of Mr. Marshall’s partial success.

That’s all, folks.

Thursday, May 7, 2015

Mental Health Issues Are Hard

In re T.S.S., 2015 VT 55

By Elizabeth Kruska

T.S.S. is a man in his mid-30s. He lives in Rutland. He has a form of schizophrenia that causes him to have delusions and that can cause deterioration in his functioning. For the last fifteen years or so, he’s worked with doctors and case managers, and has taken medication. Off and on since 2000 he was ordered by various courts to take medication..

Here’s what we know. T.S.S. started showing symptoms of schizophrenia in 1999, and started to show signs of hurting himself. He went to the Vermont State Hospital, and was released in 2000 on an order of non-hospitalization (ONH). T.S.S. did well on the ONH. The State wanted the ONH continued and so filed in court to extend it. That request was denied. T.S.S. is a talented musician, and went to California to be a drummer in a band for a while. He came back to Vermont in 2003 and started having delusions again. This time, the delusions could have been harmful to him, as he believed people were poisoning his food. He was hospitalized again, and later released on another ONH, which was continued by the court for an additional year. He was under an ONH until 2008, when his service providers decided not to ask to continue it. From 2008–2012 T.S.S. doesn’t seem to have gotten any services, but nobody heard a peep from him, either.

Wednesday, May 6, 2015

Why Rent When You Can Litigate?

B & C Management Vermont, Inc. v. John, 2015 VT 61

By Amy Davis

Back in 1987, a lease was established on a commercial property in Brattleboro for $26,500 annually. The lease also set out how rent would increase in subsequent years. The part of the lease that matters here put forth increasing rent based on cost-of-living increases. Because of that provision, the landlord calculated the annual rent increase each year and sent a notice to the tenant. The increase was added to the old rent to arrive at the new rent.

In 2007, the tenants assumed the lease and the rent increases went uncontested from 2008-2012. In 2013, the landlords sent notice to the tenants that the new rent was $54,060. The tenants objected to both the amount and the way rent had been calculated. I don’t really blame themmath is pretty hard. Landlord and tenant couldn’t work it out, so tenant sought a declaration that its interpretation of the lease language was correct, and also wanted damages for overpaid rent.

Both parties moved for summary judgment. Tenant based on the plain language of the lease, and the 4% cap on the difference between the Consumer Price Index and blah blah blah (I told you math is hard, so I’m not about to explain it now). Tenant said they should pay $45,819.83. Landlords had some jiggery pokery math of their own, and calculated the rent as $57,836. They also argued that if the lease was ambiguous, then the court should use the method of calculation the parties had used in the years prior.