Sunday, December 20, 2015

Opioid-Addicted at Birth

In re M.M. and C.M., 2015 VT 122

By Donald M. Kreis

Cases generally reach and are decided by appellate courts at roughly the speed of molasses, so it is rare that a decision of the Supreme Court of Vermont speaks directly to the headlines of the day. But that’s exactly the case here, with respect to the epidemic of opioid and opiate abuse in Vermont and its effect on the most vulnerable among us—our children.

A boy, identified here only as C.M., was born on June 25, 2014, already dependent on opioids as the result of his mother’s prenatal abuse of Suboxone. In these times especially, it is only common sense that the state should take custody by adjudging the infant to be, in the parlance of Vermont law, CHINS—a child in need of supervision. Right?

At issue in the case are actually two children, C.M. and his older sister, M.M. Writing for a 4-1 majority, Justice Eaton affirms the trial court’s determination that both M.M. and C.M. were CHINS in light of undisputed evidence that mother had been in and out of drug treatment for nine years, had been kicked out of such a program at the time she became pregnant with the younger child, was purchasing Suboxone off the street, and had been convicted of driving while intoxicated in connection with one of two incidents in which police found mother driving M.M. around without required child-safety restraints.

Saturday, December 19, 2015

Pizza Payment Problems

Panagiotidis v. Galanis, 2015 VT 134

By Andrew Delaney

Mr. Galanis bought a pizza business from the Panagiotidises (hopefully that’s the correct way to pluralize—I’m stumped). Part of the deal was that Mr. Galanis pay rent so that the Panagiotidises could keep paying the mortgage on their building (where, as I’m sure you’ve already deduced, the pizza business was housed). Mmm . . . pizza.

Things were apparently fine for about nine months. Then, Mr. Galanis decided that he wasn’t thrilled with the deal. So he had his attorney send some letters seeking to renegotiate terms and Mr. Galanis started to have his attorney put the rent money into the attorney’s escrow account.

The Panagiotidises were not impressed with this turn of events. They filed suit to evict Mr. Galanis, got a default judgment, and a writ of possession. Mr. Galanis got the case reopened and filed a counterclaim. He argued that he was fraudulently induced into entering the agreement and the lease should be void. He alternatively argued that any breach was cured because he’d paid the rent into an escrow fund.

Monday, December 14, 2015

Annoying Does Not Equal Tortious

Weinstein v. Leonard, 2015 VT 136

By Elizabeth Kruska

This opinion, unfortunately, is a result of the intersection of the two things that apparently drive a huge percentage of Vermont jurisprudence: poorly-drafted land use documents, and neighbors who don’t like each other. I have never been in the inner offices of the Vermont Supreme Court, but I like to assume there’s a whiteboard hanging somewhere, showing a running tally of SCOV greatest hits. I imagine there’s a column marked “HOAs” and it’s got several marks below it, and is right next to the column marked “cases on probation conditions,” which has so many marks they had to start a new pen and/or continue onto the floor below.

Anyway, whatever. The Weinsteins (plaintiffs) own Lot 9 and Leonard and Sayour (defendants) own lot 10. The Weinstein Group is a third party defendant, which I’ll get to in a second, or in a few paragraphs.

The defendants decided they wanted to build a barn. The plaintiffs were apparently not hip to this idea. Defendants got a zoning permit to build. Plaintiff, because she’s a neighbor and she can do this, appealed to the Manchester development review board (DRB), and the permit was upheld. After the permit was upheld, there was some sort of, ah, interaction between Plaintiff and Defendant that involved Plaintiff shouting out a window, and also Plaintiff confronting Defendant(s) on their property and bringing a “very large dog.” Two things: I live in Vermont and am familiar with two Vermont phenomena—barns and big dogs. Part of me wishes this opinion also involved a Subaru to complete the Vermont trifecta. As a horseplayer I’d call it a Vermontfecta, which is a fun word but sort of offensive-looking in print.

Saturday, December 12, 2015

Problems with Pollution

Whitney v. Vermont Mutual Ins. Co., 2015 VT 140

By Andrew Delaney

If you’re not familiar with the total-pollution exclusion in insurance policies, click here for some background. As the SCOV notes, this is the second time this year that the SCOV is called on to interpret the total-pollution exclusion in an insurance policy.

The Whitneys are foster parents, and after a new DCF-initiated foster placement, noticed they had bedbugs. So, at DCF’s behest, a pest-control company came in and soaked the house in a banned chemical. “Chlorpyrifos is a toxin that can cause ‘nausea, dizziness, confusion, and, in very high exposures, respiratory paralysis and death.’” Yummy. The feds have banned it for residential use and the spraying “violated federal and state law.”

The Whitneys were concerned. They got in touch with the Vermont Department of Agriculture, which told them to stay out of the house until testing could be done. When the testing was done, the levels were 665 times the EPA-cleanup-required levels. The Whitneys haven’t been able to live in their house since April 2013.

Sunday, December 6, 2015

In Equity and In Estate

Simendinger v. Simendinger, 2015 VT 118

By Amy Davis

Husband and wife got married in May of 1987 and divorced in February of 2014. The divorce decree included a stipulation between the parties which ordered the husband to pay wife about $2.25 million—$50,000 within 30 days and the balance of $2.2 million within a year. Wife got her $50,000 but did not receive the balance and husband did not secure the unpaid amount in real estate.

In March 2014, after the 30 days had come and gone, wife filed a motion for contempt and enforcement, as well as a motion for attorney’s fees. The court scheduled a hearing date for August. Unfortunately, husband unexpectedly died on July 14, 2014. Wife filed a motion to substitute his estate.

In September, the family court denied the contempt motion but granted the motions for substitution and attorney’s fees. It also enjoined the estate from disposing of or encumbering any real estate held by the estate that could be used to pay the wife her $2.2 million. The husband’s estate appeals the injunction, the family court’s inclusion of “business properties” in that injunction, and the award of attorney’s fees.

Attorney’s Fees and Consumer Fraud

McKinstry v. Fecteau Residential Homes, Inc.2015 VT 125

By Thomas M. Kester

First, a lawyer joke:
A new client had just come in to see a famous lawyer. 
"Can you tell me how much you charge?” said the client. 
"Of course," the lawyer replied, "I charge $200 to answer three questions." 
"Well that's a bit steep, isn't it?" 
"Yes it is," said the lawyer, "And what's your third question?"
Lawyer's fees are always a fun conversation to have with potential clients. If a lawyer got a nickel every time someone balked at their hourly rate . . . let’s just say I will probably still die with law school debt in either case.

Lawyers and clients generally like it when a statute allows them to collect attorney's fees if they prevail, like the Consumer Protection Act (fun fact #1: under the “American rule,” traditionally, each side bears their own attorney’s fees unless otherwise stated). Let’s examine the case at hand.

Ruminations on Relevance

State v. Gotavaskas, 2015 VT 133

By Andrew Delaney

Two defendants. Different facts. Same issue.

Mr. Gotavaskas was charged with burglary in one case and providing false information and operation without the owner’s consent in another case. He raised the issue of his competency, was evaluated, and found competent to stand trial. During a competency hearing, the State tried to get the evaluation into evidence. Mr. Gotavaskas was like, “Whoa, whoa—only the relevant parts. Here’s a redacted version.” The State was like, “But, but, but . . . we want the whole thing.” The trial court went with Mr. Gotavaskas’s version.

Mr. Gotavaskas again raised the competency issue. This time, the evaluating doctor (same one as before) changed his tune and found Mr. Gotavaskas incompetent. Again, there was a hearing; and again, the defense tried to keep some of it out and the State asked for the whole enchilada. The report was filed under seal. Mr. Gotavaskas was found incompetent and the parties stipulated to issuance of an order of nonhospitalization. 

Saturday, December 5, 2015

Nothing to See Here

In re Christopher Sullivan, Esq., 2015 VT 141 (mem.)

By Andrew Delaney

Attorney Sullivan resigns from the practice of law and the SCOV therefore disbars him. That's it. Fin.