Sunday, November 20, 2016

Whose Line is it Anyway?

I'm Mr. Seagull and I neither
approve nor disapprove of this summary. 
I'm just a bird with an expression that 
vaguely resembles the famous 
McKayla Maroney shot from 2012
State v. B.C., 2016 VT 66

By Andrew Delaney

Once a criminal defendant has been found incompetent or insane, what’s the State’s Attorney’s role in the case, if any? 

This is kind of a weird appeal. It stems from the State’s Attorney’s attempt to be heard on motions for continued treatment after mental-health orders had expired. It’s kind of a “we’re not-done-with-you-yet!” appeal. But the SCOV, in proper judicial fashion, says, “Oh, we’re done.” 

DH was charged with simple assault on a police officer and resisting arrest. After DH’s competency and sanity was evaluated, the parties agreed that he was insane at the time of the offense and to a 90-day order of non-hospitalization (ONH) under this statute (subsection 17 if you’re curious). Because a personal injury was involved, there had to be a hearing before DH was discharged from the care and custody of the Commissioner of Mental Health. 

Saturday, November 19, 2016

It’s Raining, It’s Pouring . . . Is The Old Culvert Diverting?

Regan v. Spector, 2016 VT 116

By Thomas M. Kester

The issue in this case is surface-water redirection. There is a hillside dissected by two roads and property lots below the top road are owned by the Regans and Spectors (Regans live on the easterly side and Spectors live on the westerly side). Culverts play an integral role in this story. Of particular note is culvert #7: a 15" culvert that carried water from above the top road, under it, and then drained below the top road, and was repositioned in 2004 and again in 2008. There are also culverts #5, 6, and 8, as well, but #7 is the important one.

The Spectors purchased three lots in 1992 that were off the top road and later became their residence. In 1992, as well, culvert #7 “was a fifteen-inch culvert that carried storm water from a portion of the hillside above . . . [the top road], under the [top] road, and on the wooded hillside below.” In 1996, the Spectors sought a permit for a driveway that was at the location of culvert #7 and the Town required the Spectors to help pay for enlargement costs of the 1992 culvert. Spectors wanted to move culvert #7 further uphill but the town road commissioner was concerned that it would increase the flow of storm water.

In 2004, the Spectors applied for a home-build permit from the town that planned for a driveway access close to culvert #7. The town road commissioner “dug out a box ditch from the outlet of culvert #7 for several feet in an easterly direction. It sent the flow of water from culvert #7 towards the east approximately fifteen feet, at which point the water was free to run in sheets down the hillside,” and “when the Spectors built their driveway close to culvert #7, they placed a culvert in the box ditch and covered it with gravel for the driveway to run over it. The result was that water from above . . . [the top road] flowed through culvert #7 into the box ditch and then turned at almost a ninety-degree angle to proceed through the culvert under the Spectors’ driveway toward the east for a distance of fifteen to thirty feet.” 

Saturday, November 12, 2016

A Rose by Any Other Name . . .

Chandler v. State, 2016 VT 62

By Andrew Delaney

“Would smell as sweet,” Shakespeare wrote. And this case also teaches us that creative labeling cannot change the nature of a thing. For example, just because we describe this blog as “witty,” does not make it so.

Mr. Chandler’s “Petition for Extraordinary Relief” was dismissed by the trial court. When the SCOV puts quotes around the name of the filing itself, it’s a safe bet that this is not going to end well. Essentially, the trial court tossed Mr. Chandler’s filing because in its view, the petition raised claims already decided in a previous post-conviction-relief (PCR) proceeding.

The SCOV begins by noting that this is round four of Mr. Chandler’s appeals of his conviction. Mr. Chandler was convicted of impeding a public officer—a felony—when he confronted a firefighter responding to a reported brush fire on his property. His conviction was affirmed in an unpublished opinion (which I tirelessly tracked down for you). He filed a PCR on ineffective-assistance-of-counsel grounds, arguing that a fee dispute and other deficiencies meant that his conviction was unlawfully obtained. The trial court got rid of that case, reasoning that Mr. Chandler was done with his sentence, so the thing was moot. The SCOV reversed, reasoning that the case wasn’t moot, and sent it back for a decision on the merits.


Flanagan v. duMont (Flanagan), 2016 VT 115

By Elizabeth Kruska

The facts of this post-divorce action remind me of pulling on a loose thread and then everything unravels. I think Weezer put it best when they sang, “If you want to destroy my sweater, hold this thread as I walk away.”

Flanagan (Husband) and duMont (Wife) were married and then divorced. They partly negotiated a divorce agreement, but had to have a contested hearing regarding some other issues. The appeal in this case has to do with a few provisions in the final order.

The first issue is the marital home in Stowe. The house was awarded to Wife, free of any marital interests of Husband. Wife was ordered to refinance the loan on the house within about a year, and if she couldn’t do that, she had to sell the house at a price that was agreeable to both she and Husband. Since they were jointly on the mortgage, if Wife fell behind and failed to make a payment, Husband was authorized to make the payment, but could then offset that against what he owed Wife for maintenance and support. Seems reasonable so far.

Saturday, November 5, 2016

Early Deeds Done Incomplete

Khan v. Alpine Haven, 2016 VT 101

By Thomas M. Kester

Bill Cosby in Himself (1983)1 has this bit where he recounts preparing his children’s breakfast all by himself and:
The child wanted chocolate cake for breakfast! How ridiculous! ... And someone in my brain looked under chocolate cake and saw the ingredients: eggs! Eggs are in chocolate cake! And milk! Oh goody! And wheat! That's nutrition! 
The joke being that breakfast is the most important meal of the day and selectively viewing the chocolate cake’s constituent parts may bring about the (albeit wrong) conclusion that serving a piece of cake is appropriate breakfast food—even with grapefruit juice on the side. I thought of this joke when I read this case, as I saw the same type of scenario presented (sans chocolate): Can constituent and fragmented portions contained in various deeds be combined to create a palatably distinct legal entree or do these deed provisions retain their original flavors because ingredients were omitted that prevented the provisions from being able to gel and coalesce? In other words: If I have some combination of chocolate cake ingredients in my kitchen does that mean I actually have (or should view their collective culinary potential as) chocolate cake?

Alpine Haven is a subdivision in the Towns of Montgomery and Westfield. For over thirty years, certain Alpine Haven chalet/lot owners (Plaintiffs) have “asserted that their property is not part of a CIC [“common interest community”] and that they were not required by their deeds to be AHPOA members” (“AHPOA” being the Alpine Haven Property Owners’ Association, Inc. (Defendants)). While Plaintiffs acknowledge they are obligated to pay certain costs, they argue that “they should not have to pay AHPOA for special assessments, annual meeting costs, insurance, road expansion or improvements, or any other AHPOA expenses not specified in their deeds.” AHPOA argues that Alpine Haven is a preexisting CIC, and that Plaintiffs cannot exit the AHPOA and disregard their unit-owner obligations including paying AHPOA-assessed fees.