Sunday, August 28, 2016

Reefer Madness

C&S Wholesale Grocers v. Vermont Department of Taxes, 2016 VT 77

By Elizabeth Kruska

Some of you may have seen this movie.

You know what a reefer is? No, silly, it’s a refrigerated truck! I mean, yeah, it’s also weed, but in the context of this particular opinion, it’s a truck and the fuel that runs the refrigerated part of the truck. Actually, this opinion is more about refrigerated tubs, but I can’t think of anything funny about refrigerated tubs.

C&S is a big wholesale grocer company in Vermont, and with its business headquarters in Keene, New Hampshire. They buy grocery products from producers and re-distribute them throughout New England and New York. I should mention that at one point in the last decade my husband, who is also an attorney, provided some legal services to C&S. I am not sure what he did, and it’s been at least five years since he had any cases with them. I vaguely remember him having to prepare for a trial involving questions about the correct way to weigh cheese. He kept calling it “The Cheese Trial.” I believe The Cheese Trial settled amicably.

Cheese, like many other grocery products, has to be kept cool in order to be safe for distribution, re-sale, and ultimately for consumption by human beings. The trick is that the producers and distributors have to be able to maintain the right conditions from point A to B to C to your fork. That’s more cumbersome and less romantic than “Farm to Table” but I think you know what I mean.


Vesting. Vest. Get it? 
Coons v. Coons, 2016 VT 88

By Elizabeth Kruska

This is a short opinion, so hopefully this will be a short summary.

Husband and Wife were married but decided to divorce. They had a final divorce hearing that took place over the course of two days. During the second day of the hearing, an issue came up regarding Husband’s military pension. The judge called a recess and called the parties’ attorneys into chambers, where they discussed the status of the case. In the biz we call this a “weather report.” They can be helpful in moving cases along.

During the chambers conference, the judge said he wasn’t going to make an order distributing the military pension, because Husband’s interest in it had not yet vested. The lawyers said, “thanks for the head’s up,” went back out to their clients, and hammered out a final settlement, which included Husband paying Wife $15,000.

Wetland Woes

Agency of Natural Resources v. McGee, 2016 VT 90

By Elizabeth Kruska

I like horses. Here’s an actual conversation I have had with various horses:
Me: Walk on, we’re going to the paddock.
Horse: But there’s grass.
Me: Walk on, you can eat the grass in your paddock.
Horse: But there’s grass right here.
Me: What part of “walk on” were you not totally understanding?
Horse: You know I weigh 1200 pounds, right? There’s grass. We’re stopping to graze.
Anyone who has led a horse past anything green has had this same conversation. Horses are grazing machines. And who can blame them? If your favorite food grew directly out of the ground and all you had to do was bend your head down and munch on it, you’d be all over it, too. (Note: if your favorite food is lettuce, and you can and have done this in a lettuce patch, please tell us all about it in the comments.)

This is going somewhere, I promise.

Redemption: Tax-Sale Style

Burgess v. Lamoille Housing Partnership, 2016 VT 31

By Elizabeth Kruska

Immediate, up-front disclaimer: I do not do real estate law. To the extent this case has to do with real estate, deeds, and other things to do with land, I’m a touch out of my element. I’m good with the legal part. I might as well be trying to explain the infield fly rule; I get baseball, but the infield fly rule does not adhere to my brain.

Given that disclaimer, here are the facts, basically. Mr. Burgess’s parents bought some property via the Lamoille Housing Partnership (LHP). The land had a house, which they owned, but ownership of the house was severed from the land itself. The Burgesses got a leasehold interest in the land for development for 99 years and had terms and conditions to follow, including that they had to pay the taxes on the whole property.

They later disputed paying taxes and ended up delinquent. They went to court, and the court determined that they did have to pay the taxes and that they did not own the underlying land. There was a tax sale, and the Burgesses’ son, Matthew, went to bid on the land. He was outbid at the sale. The sale was subject to redemption, meaning if the Burgesses paid off their tax debt within a certain period of time, they would not lose the property.

Jurisdiction Justification

Ward v. LaRue, 2016 VT 81

By Elizabeth Kruska

I like the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). I like it because it’s a set of rules that deals with things that happen in real life. Let’s suppose Mother and Father are married and have a child. Then they divorce and Mother gets primary physical custody of Child, but Father gets visitation. These are things that happen to real people. This is normal and part of what goes on in the world. Another thing that happens in real life is that people move. Sometimes people move to different states. This is also normal.

However, there can be complications. With respect to child custody, if people can’t agree on how to solve a problem that arises because one parent or the other has moved to another state, there are rules. Those rules are the UCCJEA.

Here’s what happened in this case. Mother and Father lived in Vermont and had a child who also lived in Vermont. A divorce was filed and granted, and Mother was awarded primary physical rights and responsibilities of Child, while Father was awarded visitation. It’s not stated, but apparently right out of the gate Mother wasn’t allowing Father to have his time with Child, because Father had to file a motion to enforce parent child contact fairly soon after the divorce. Only ten months after the divorce was final, the trial court entered an order that admonished Mother that if she didn’t follow the parent child contact order that the court might change custody. The court also said that Father had full access to medical, dental, law enforcement, and school records of Child.

Sunday, August 7, 2016

Change of Plans

Gould v. Town of Monkton, 2016 VT 84

By Elizabeth Kruska

Mr. Gould owns or owned some property in the town of Monkton and had ideas about how he’d like to subdivide and develop the lots. I’m not sure how long he had the land, exactly what his plans were, or how much work he had put in to making those plans a reality, but he’ll need to have a change of plans.

Let’s back up. The Town of Monkton had some zoning regulations that had been kicking around since 1978. As someone who is also of a 1978 vintage, I see no problem with this. But apparently the town thought the old regulations and their subsequent amendments needed some revamping. The opinion suggests this overhaul had been in the works for several years, and finally got replaced in 2012.

The town’s planning commission held a public meeting in late 2011 on the new regulations, which they called the Unified Planning Document (UPD). After it was approved at the planning commission level, the UPD was sent to the town. At this point—between the times the planning commission approved the document, but before the town formally voted on it—the town reviewed all new building applications under the guidelines of the UPD, not under the guidelines of the older zoning regulations.

Curtilage By Any Other Name Is Constitutional

State v. Koenig, 2016 VT 65

By Amy Davis

This case focuses on a motion to suppress evidence that ultimately lead to a DUI conviction. State Police received a tip about some problem driving in Bethel. The caller gave the vehicle’s license plate number, which the police used to find the registered owner and her address. The trooper parked outside of the residence which consisted of a single-story structure and a garage-like structure open on one side and without doors, making the inside completely visible from the street.

The trooper saw the identified vehicle parked in the garage. He observed two entrances to the building—one on the left that he believed was the entrance to a business, and one on a shared wall, which he believed was the entrance to a residence. The trooper approached the entryway inside the garage area. As he approached the entrance, he observed the vehicle, and some damage to the front-left fender and driver’s side mirror.

Defendant opened the door and identified herself. After some field sobriety exercises and a breath test, the trooper arrested the Defendant on suspicion of DUI. Defendant was arraigned, requested a timely civil suspension hearing, and filed a motion to suppress in the civil and criminal cases, and a motion to dismiss in the civil case. 

Multiple Bites of the Apple

Deutsche Bank v. Pinette, 2016 VT 71

By Thomas M. Kester

Albert Einstein is (allegedly) credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” This is such a hackneyed quote and reminds me of vaudeville’s approach to comedy. Oliver Wendell Homes Sr.,1 in The Autocrat of the Breakfast-Table (1858), offers—in my opinion—a more discerning (and amusing) explanation: “Insanity is often the logic of an accurate mind overtasked. Good mental machinery ought to break its own wheels and levers, if anything is thrust among them suddenly which tends to stop them or reverse their motion. A weak mind does not accumulate force enough to hurt itself; stupidity often saves a man from going mad.”

“Hey, Tom, what’s the point?” Simply to elucidate that humans are creatures of habit and habit is repetitive, and the vast majority of humans are not insane (albeit we all have our eccentric moments). Who hasn’t explored couch cushions multiple times for one’s key in an almost Sisyphean fashion, knowing you came up empty handed just moments before? Maybe it’s chaos theory, self-doubt, or, because you threw the keys across the room, only Schrödinger and Heisenberg can locate them. Like the great Fonzie, perhaps we also believe that the jukebox will start only after the perfect maneuver is executed. We just need a little more time.

Speaking of time, it’s time to visit the instant case’s topics: real estate transactions and pleadings. On the surface they appear mundane, repetitive, and mainly involve paper pushing. Under the water, these monotonous actions harbor legal benefits. They can provide predictability, ease of process, and, besides, who wants to deal with pedantic legal requirements? If you don’t believe me (or want some reading material that will put you to sleep) I implore you to look up “common law pleading” and “code pleading”—both historically used in American court systems—to understand why “notice pleading” is the preferred method in civil procedure. This case illustrates that doing the same thing over and over again may not—at least after a bit—give you the desired results you wanted (I’m sure there is a Rolling Stones reference that I could throw in here).

Monday, August 1, 2016

Blinded by the Light

State v. Howard, 2016 VT 49

By Elizabeth Kruska

How many times has this happened to you? You’re driving at night. It’s dark. You’re minding your own business and paying attention to where you need to go. Then, all of a sudden, some jackpot decides he’s going to ride up on your bumper and tailgate you for what feels like forever. Oh, and of course, said jackpot: (a) has a vehicle that sits higher than yours, so the headlights shine directly onto your mirror; or (b) has his highbeams on; or (c) both. This really grinds my gears.

It also bothered Mr. Stephen Howard, who had the same situation happen a couple summers ago. The only way he could figure to get the lights out of his eyes was to move over. This caught the attention of a Trooper, who pulled over Mr. Howard, assuming him to be impaired. Mr. Howard ultimately got charged with a DUI, but challenged the reason he was stopped, saying that the Trooper really didn’t have a good reason to stop him. The trial court held a hearing, and agreed the Trooper didn’t have a legitimate reason for the stop. The State appeals.

SCOV agrees with the State, and reverses and remands the matter.