Saturday, July 29, 2017


State v. Joseph2017 VT 52

By Elizabeth Kruska

Mr. Joseph owns some land in Bennington County. He had some trees he wanted to cut down. Unfortunately, he strayed onto his neighbor’s land and cut down three of his neighbor’s trees.
He is all pine, and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He was charged with a type of trespass that forbade entering property and taking something of value which is parcel of the realty. Trees fit that description. While Mr. Joseph’s trial was pending, the legislature passed a timber trespass law that seemed to conflict with the existing law.

Sunday, July 23, 2017

You Can Bite This Apple Twice

"See that? Looks like a clerical error."
McLaughlin v. Pallito, 2017 VT 30

By Andrew Delaney

Most of the time, you only get one bite at the proverbial apple. I’ve always wondered about that phrase. Who doesn’t take more than one bite of an apple? I consulted the Google and the results are inconclusive—several folks think it’s a biblical Garden of Eden reference, a few think it’s a Snow White thing, and then there are some weird sexual theories out there. (Because aren’t there always?) This has nothing to do with this case. But I’ll be damned if I’m going to be the only one wasting time on this phrase.

The issue is this case is whether a prison superintendent can order a second hearing on a rule violation when the first hearing panel gives a not guilty based on a clerical error. SCOV says the second hearing is okay, which instinctively seems a bit strange, so let’s dig into it.

Mr. McLaughlin is a guest at state-subsidized housing—the kind very few people willingly live in. He got hit with a DOC charge—commonly referred to as a “D.R.”—for fighting. As is required in such cases, the prison held a hearing.

Friday, July 14, 2017

Bites at the Apple

That's it! No more biting! 
Deutsche Bank National Trust Company v. Watts, 2017 VT 57

By Elizabeth Kruska

How many bites at the apple are authorized? One.

Sort of related. I’m currently surrounded by Apple Products. I’m like that guy in the old commercials: I’m a Mac. But I just noticed that the ubiquitous Apple logo has one bite taken out of it, and now I wonder why. I wonder if it’s simply because it’s good design, or if it’s something larger. Maybe it means you only get one bite at the apple, so make it count. I don’t know. Maybe that’s a little too deep for right now.

Anyway, the Wattses—Paris and Skip—had some property and executed a mortgage back in 2006, and the note ultimately ended up with Detusche Bank, who we’ll just call “Lender.” The Wattses, or the “Borrowers” didn’t make their mortgage payment that was due on December 1, 2008. The Lender wasn’t hip to this action and filed a complaint in the appropriate Vermont Superior Court seeking foreclosure and all sorts of associated fees. In February of 2010, Lender filed an affidavit with the court indicating that service was complete.

Then for a very long time, just like in Vermont itself, nothing happened.

Sunday, July 9, 2017

Show Your Work

"And then the calculator said . . ."
Stevens Law Office v. Symetra Assigned Benefits Service Co., 2017 VT 61

By Andrew Delaney

When I was younger, I was quite good at math. The thing I never liked was having to show my work. If I got the right answer, what did it matter? Then, when I was headed to law school, I was told something like, “Now, it doesn’t matter if you get the right answer—the right answer is largely irrelevant. The important thing is to show your analysis.” I thought that seemed doubly silly. Now that I teach college classes, I think I know why: answers are boring but analysis can be entertaining. I’m kidding . . . sort of. The bottom line is that in law—like in math class—it’s important to show your work.

Here’s the story. Mr. Larock hired Stevens Law Office to represent him in a case. Stevens Law Office required a $16K nonrefundable retainer. Mr. Larock has a structured settlement, and the way the $16K would get paid is in 2022, the settlement funding company would pay the $16K directly to Stevens Law Office. Mr. Larock agreed to these terms.

Stevens Law Office then asked the trial court to approve the deal as required by this statute. There was a brief hearing, and an inquiry with bar counsel about the propriety of nonrefundable retainers (they’re okay as long as there’s notice of nonrefundability, scope, and the fee is reasonable). The trial court then issued a decision, concluding that because Stevens Law Office’s representation was ongoing, any determination of whether the fee was reasonable would be necessarily speculative.

Saturday, July 8, 2017

Keeping Tabs on Mom

Unfortunately, the kind of GPS
featured in this summary does
not come with detailed maps 
State v. Kane, 2017 VT 36

By Eric Fanning

What we have here, folks, is a violation of probation (VOP) appeal. Probation is a court-imposed criminal sentence where the convicted offender is released into the community instead of going to jail. Virtually all probationers have to abide by certain conditions while serving their sentence. If the probationer violates those conditions or fails to regularly check in with their probation officer (PO), they get a complimentary extended stay at the Big House, courtesy of the State.

Defendant/appellant Patricia Kane plead guilty to custodial interference (she took her son from his legal custodian and crossed state lines). She was sentenced to two to five years, all suspended except for one year. After serving the unsuspended portion of her sentence in prison, she was released on probation. As a condition of her probation, Kane was required to stay 500 feet away from her son’s school and home, avoid contacting him without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. She was also required under Condition 32 to submit to electronic monitoring as directed by her PO.

Under Condition 32, the Department of Corrections (DOC) required Kane to wear a GPS unit. One of the components needs to be charged twice a day for two hours at a time or else it loses juice and the signal is lost. The details of the alleged VOP’s aren’t terribly important here, but basically, the State says Kane willfully disregarded Condition 32 by doing such a terrible job of keeping the GPS unit charged. Kane claims the charging station made her phone unusable, and that it made weird fax machine-like sounds, and so she had to unplug it to make phone calls. At her probation revocation hearing, State put on evidence that the unit was disconnected on multiple occasions for lengthy periods of time, and that this, along with the testimony of her corrections officers, was enough to conclude that she was willfully disrupting her GPS monitoring. The criminal division found that Kane did willfully violate her conditions of probation.

The All New Let’s Make A Deal

Weaver . . . get it?
Weaver v. Weaver, 2017 VT 58

By Elizabeth Kruska

My husband and I have a deal in our marriage. Whoever cooks dinner is absolved of cleanup duties. If I cook, he cleans up. If he cooks, I clean up. There was this fabulous time right after Hurricane Irene when our town didn’t have water. That was also the exact same day he decided to make a delicious chicken and vegetable stir fry, using—and I am not making this up—seven bowls, three pans, two cutting boards, and all the spoons. But because we didn’t have running water I couldn’t wash the dishes. I had to rinse off the dishes in the stream behind our house because if I didn’t they’d get funky in the sink, and because a deal is a deal. He cooked, I cleaned up. In the days following we ate a lot of PBJ’s until the town felt it was safe to turn the water back on. I’m not at all ashamed to admit that PBJ and PBR is a perfectly adequate dinner in August. (Do not confuse Pabst Blue Ribbon with the Professional Bull Riders Association. Both are PBR’s, both are great, but they are significantly different in terms of thirst quenching and contact with very large, horned animals.)

This deal is not a big deal. And in terms of marriage-related agreements, it’s fairly minor. A bigger, and very common agreement often has to do with raising children. It’s completely normal for one spouse to work while the other either works part time or stays home if a family has kids. There are loads of reasons for this, and all are completely valid.

The spouse who doesn’t stay home gets a significant benefit. Although it’s a one-income situation, it ensures that the kids are home and raised according to how the family wants to do that. It also potentially means that the spouse at home keeps the home in working order. It also means the working spouse has the benefit of continuity of career, which leads to advancement and higher rates of pay.