Sunday, July 15, 2018

Mixed Signals

You have to pick a door. Any door
is fine. Except the wrong door.
Lillie v. Dept. of Labor, 2018 VT 66

By Andrew Delaney

Have you ever ended up in trouble for doing something you were told to do? I’ve been married a few years now, so I know I have.

Mr. Lillie knows what that’s like. He got burned at work. This isn’t a joke. He worked for a propane company and he actually got burned. He continued to work but at a limited capacity. A few months later, he got fired for an alleged safety violation. Due to his work injury, during this same time period, he was taken out of work by his doctors. While there was some dispute about his worker’s compensation eligibility, he went to the Economic Services Division (ESD) to try to get some financial help. ESD told Mr. Lillie to apply for unemployment if he wanted to receive any benefits. So Mr. Lillie did as he was told. Those of you that have some experience with how unemployment works might be thinking, “Why’s he applying for unemployment if he can’t work? He’s not gonna get it.” That’s right.

The Unemployment Insurance Division calculated “monetary eligibility” based on Mr. Lillie’s wages earned during the immediately previous June-July year. And he qualified under that calculation. This triggered a “benefit year.” (If you’d like to learn more about how a benefit year and eligibility are calculated, here’s a handy-dandy link to a previous post on the issue). However, he wasn't able and available to work due to his work injury and so wasn't able to get unemployment.

We'll See

We're not entirely sure
what is going on here. 
Clark v. Menard, 2018 VT 68

By Elizabeth Kruska

For all our gentle readers unfamiliar with the Vermont Department of Corrections’ phenomenon known as “work camp,” I’ll explain how this works. It’ll be helpful for future reference throughout the course of this summary.

In Vermont we have what’s known as “truth in sentencing” which is that if someone gets a sentence, that’s their sentence. There’s no longer “good time” which is a way to reduce someone’s sentence. There are some places where it’s basically understood that if you get a 1 year sentence you serve 8 months. Vermont is not such a place. Well, subject to some minor exceptions, and work camp is one of those exceptions.

Certain offenders with nonviolent offenses and/or nonviolent records might be allowed to go to work camp. It’s exactly what it sounds like. It’s a part of one (sometimes more than one) correctional facility where sentenced inmates get to work in order to earn “day-for-day” credit toward their sentences. This is arguably a good thing. Inmates who are eligible want to go to work camp and once they’re there, they want to stay. Participants get not only the benefit of credit toward their sentences but also get to spend their days working and being productive. The state benefits because it gets some people out of jail sooner, thus costing less, while having inmates work on certain state projects, also costing less. I once got to see the license plate shop when the women were making plates and signs at the Windsor Farm. It was very cool.

Saturday, July 7, 2018

The Power of Contractual Obligations Compels You!

Well, why wouldn't you press it? 
People's United Bank, NA v. Alana Provencale, Inc., 2018 VT 46

By Thomas M. Kester

You can buy tons of cool stuff at auctions: cop cars, finger traps, and the like, but be careful what you do buy. You don't want to be labeled a “genuine idiot” like Cary Grant. Within a split-second you can buy whatever is on the auction block. But be forewarned: you are now on the financial chopping block too, and hopefully in all the flutter and excitement of bidding you didn’t stretch yourself too thin.

Banks and lending institutions really like it when mortgage holders pay their debts, especially in a predetermined and consecutive nature for many years. What happens if you stop paying and get foreclosed upon? One possibility is that the property goes up for auction and the highest bidder gets to buy the property from the Bank. That’s what happened here but, like with a good martini, there is a little twist added.

Out of seven bidders, Buyer wins the property in question in September 2016. Thereafter, Buyer made the required deposit and signed an auction purchase and sale agreement (“P&S”). The P&S states that Buyer is obligated to purchase the property (pending the court’s confirmation) and the Bank has the “right . . . to request relief from the court in the event buyer fails to pay the balance of the purchase price.” The trial court confirms the sale by order and the confirmation order “names buyer and states that ‘the sale reported is hereby confirmed and title to the lands and premises shall be transferred to’” Buyer and the order also “refers to buyer by name and indicates buyer as the high bidder at the public sale” and also “listed the property’s sale price and confirmed buyer’s obligation to purchase the property.” Everything is going swimmingly and Buyer and Bank schedule the closing for February 10, 2017. Now would be a good time to start shaking up that martini (I like my martinis “dirty as the Hudson river” but you can concoct whatever you want).

Friday, July 6, 2018

Know Your ABCs!

When it all comes together . . .
In re Bourbeau Custom Homes, Inc., 2017 VT 51

By Eric Fanning

In Vermont, unemployment benefits are funded through a system of payroll taxes. Our state’s Unemployment Compensation law requires employers to pay taxes on wages paid to their employees. Following an audit conducted by the Department of Labor, Bourbeau Custom Homes, Inc. was assessed just over $7,000 for unpaid unemployment taxes on wages paid to nine people, five of whom are at issue here. Bourbeau says that these people aren’t “employees” within the definition of the law, and so the company should not have been liable for said taxes.

In many situations, this isn’t a hard issue to resolve. If you’re a Regular Joe with a 9-to-5 job, of course you’re considered an employee of Company X. Company X has to pay taxes on Regular Joe’s wages—which go to the Unemployment Compensation Fund. But alas, it is rarely the “easy” cases that reach SCOV (or that end up as published opinions).

Bourbeau Custom Homes is a Swanton-based company that is in the business of building “dream homes” for its customers. Sounds pretty sweet to me. Anyway, here’s what we know about the company: they have a foreman on staff to visit job sites and monitor progress on its projects. Mr. Bourbeau, the company’s owner, establishes the project schedules (they aim to finish homes in 12 to 16 weeks). The workers involved in this appeal are independent contractors, according to the agreements they signed with Bourbeau. They set their own hours at the job sites and provide their own hand tools. 

Saturday, June 30, 2018

Frequent Fliers

It's a cycle . . .
Weaver v. Weaver, 2018 VT 56

By Chris Larson

In family court, when hunting in my mind for support for a proposition I hope is legally sound, I’m tempted (I’ve actually done this) to cite Weaver. Odds are, this reference is correct, as the Weavers have been to the Supreme Court so many times that any proposition is probably supported in one of their cases. To the list of such citable propositions, add this: think twice before representing your spouse in the spouse’s divorce proceeding.

The most recent iteration of this long-standing battle (this one) upholds a trial court decision holding mother in contempt for failing to comply with an order placing the parties’ minor child in father’s care.

Curiously, or perhaps not, the Court also remands the case to determine whether father’s attorney, also his spouse, should be disqualified from further representing him.

Sunday, June 24, 2018

Easements: Is The Usage Conducive?

Still a Park? 
In re Vermont Gas Systems, Inc., 2017 VT 83

By Thomas M. Kester

The question is whether land dedicated to public use may be condemned for another public use when the new use does not materially interfere with the prior use. Intervenors are a group of Hinesburg residents who use Geprags Park (“park”) and they are appealing a Public Service Board (“Board”) order. On the other side is Vermont Gas Systems, Inc. (“VGS”). Intervenors take issue with the Board’s decision to condemn an easement through the park for the purpose of installing a natural gas pipeline, and argue the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. § 112(a)(2).

Background: VGS wanted to expand its Canada-to-Burlington pipeline to Addison county and, to that end, filed a petition with the Board for approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury.

The park was devised (a.k.a. transferred by will) to Hinesburg and the probate documents stated that park was to “be used only as a public park or school or for public recreational or educational purposes.” VGS sought an easement through said park but the Town wouldn’t convey the easement “because it determined that the decree’s covenant restricted its ability to do so.” But later on, VGS and the Town agreed to a condemnation of an easement and in October 2015, VGS petitioned the Board to condemn a 1,987-foot-long easement through the western portion of the park. In March 2016 several residents petitioned to intervene and, after initially denying their requests, the Board allowed some of the residents to intervene. Also in March 2016, the Board held a meeting and voted against the stipulation with VGS. 

Writ Large Too

There's gotta be something in
here that'll work . . .
State v. Cady, 2018 VT 61

By Andrew Delaney

All you lawyers who know what a “writ of coram nobis” is without looking it up, raise your hands. If you did raise your hand, then chances are you paid more attention in law school than I did, or you studied Latin, or you occasionally look up legal words and phrases on Wikipedia.

That’s exactly what I just did. Turns out, it’s just a writ of error—a formal way to ask the trial court to correct a previous error. I guess we could call it a “writ of mulligan” or a “writ of do-over” if we wanted to have a little fun. Only fifteen states and DC recognize the writ—and Vermont is one of the fifteen states. New York also happens to be one of the states that recognizes it. This may not mean much to you, dear reader, but the writ is recognized in all three states that I hold licenses in. Awkward. And here I am making jokes about its rarity. Well, crud. I guess I learned something today. Thanks, Wikipedia!

My lack of esoteric legal knowledge aside, let’s move on to the case at hand.

Mr. Cady was convicted of DUI in 2006. He was convicted of DUI-2 after a 2012 guilty plea. During the 2012 plea colloquy, the trial court recited a few facts and asked Mr. Cady whether he agreed that the State had enough evidence to prove the case beyond a reasonable doubt. He agreed. He was convicted, completed probation, and did not appeal.

Sunday, June 17, 2018

Certification Required

If you do med mal, a reminder string
tattoo isn't necessarily out of the question
Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53

By Andrew Delaney

A medical malpractice complaint generally requires a certificate of merit. You might think this isn’t a big deal. After all, it’s just a one-pager (or so) that says the lawyer or plaintiff has consulted with a medical expert and the medical expert has said the case has merit. But, it’s a big old deal. We’ve written about it before. If you do any medical malpractice work, memorize this statute, boys and girls. It may just save you from very uncomfortable conversations with your client and your malpractice carrier.

So, in this case, Mr. Quinlan’s wife, Lincy Sullivan, went to see a physician’s assistant on October 21, 2014. She had shortness of breath, leg pain, and chest pain. The PA concluded that it was allergies, prescribed an inhaler, and sent Ms. Sullivan home. She died three days later from a blood clot in her lung.

Mr. Quinlan hired an attorney. The attorney consulted with a PA and the PA wrote an opinion letter opining that the defendant’s treatment of Ms. Sullivan didn’t meet the standard of care on a number of levels. That letter and Ms. Sullivan’s records were provided to the defendants pre-suit.

Hold the Phone

Orange is for voluntary dismissal . . .
because we say so

Federal National Mortgage Association v. Johnston, 2018 VT 51

By Elizabeth Kruska

I’m writing this post while I’m on hold. Fortunately for me (and by extension, for you, gentle reader), this particular company with whom I’m on hold has something better than hold music: hold facts! Since I’ve been on hold I’ve learned about the origin of Flag Day, the exact time of the summer solstice this year in the Central Time Zone, fireworks injuries, and the meanings of various colors of roses during the Victorian Era.

Here’s the scoop in this case. Federal National Mortgage Association (let’s call them “the Bank” because that’s loads easier) owned a particular parcel of property in Rutland, which was mortgaged by the defendants, the Johnstons. Reading between the lines, it would appear the Johnstons got behind in making their payments, and in June 2016, the Bank filed an eviction action. There was an issue with service (that issue being “service did not happen”), and as a result the action was dismissed in November of 2016.

In March 2017, the Bank filed another eviction action, alleging that the Johnstons were the former mortgagors and current occupants of the property. The Johnstons didn’t answer the complaint right away, and in June 2017 (possibly on Flag Day, but the opinion doesn’t mention this), the Bank moved to dismiss the action. The court entered a dismissal without prejudice.

Saturday, June 2, 2018

First Amendment Fiasco

There's not much you can't say . . .
State v. Schenk, 2018 VT 45

By Charlie Buttrey

Writing for the majority in the 2012 case United States v. Alvarez, Justice Anthony Kennedy wrote that “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”

William Schenk took Justice Kennedy’s remarks to heart when he distributed flyers advertising the Ku Klux Klan to the homes of two women, one a Mexican-American, the other an African-American. The one-page flyer depicted a hooded and robed Klansman mounted on a horse, holding a burning cross. Behind the rider were images of the Confederate flag and the colonial thirteen-star American flag. Across the top of the flyer were the words: “Join the Klan and Save Our Land.”

For doing so, Schenk found himself charged with two criminal counts of disorderly conduct. The complaints alleged that he “recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” Schenk moved to dismiss on the grounds that his conduct was protected under the First Amendment. The trial court denied the motion, ruling that the conduct was not protected speech since Schenk allegedly used the flyer as a tool to convey a strong message of intimidation and the potential for harm. Schenk entered a conditional guilty plea, reserving the right to appeal the trial court’s decision, and was sentenced to concurrent terms of 119 to 120 days, with credit for time served.

Factoring the Factors

This is a red factor canary.
It's just a cool bird. 
Bratton v. Holland, 2018 VT 54

By Elizabeth Kruska

This case is a pretty good example of how hard custody cases can be when figuring out what is really best for kids. There are lots of different pieces a court needs to take into consideration when it needs to figure out what is really in the best interest of the child.

Mom and Dad were married. They had a child, D, in 2007. In 2011, Mom and Dad divorced. Mom got sole physical custody subject to visitation with Dad. Dad lived in Vermont, and Mom moved to North Carolina. The plan was that Dad would have contact with D by Skype and would also get several weeks of in-person visits per year.

This didn’t work. Mom withheld and prevented visits between Dad and D, and also prevented Dad from having Skype sessions with D. Dad filed a number of motions to enforce and motions for contempt. Mom didn’t appear for any of the hearings that were held over the course of a couple years. Finally the court found Mom in contempt, finding that she had willfully violated the visitation order. The court ordered that it was no longer in D’s best interest to live with Mom, and issued an order requiring that D be returned to Dad.

Guess what didn’t happen.

Saturday, May 19, 2018

Suit For the Sewer

Did someone say "sewer"?
Hayes v. Mountain View Estates Homeowners Association, 2018 VT 41

By Elizabeth Kruska

Longtime readers of our fair blog know that we here at SCOV Law keep an eye on Vermont Supreme Court trends. We know the current hot issues tend to be shenanigans with probation conditions and shenanigans with homeowners associations. This is the latter. Sort of.

Did you know—and it is entirely possible you did not know this—that individual people are allowed to own sewer systems? I’m looking around my workspace right now and I see that I own a lot of things, many of which I probably don’t need. One thing I know I don’t own, nor do I want to, is a sewer system. Because the problem, apparently, is if you own a sewer system, that when you die (and really, I’m not trying to be grim but we’re all going to die), it probably ought to be clear what’s going to happen with that sewer system. And you know what, as an added bonus, let’s throw in some roads and a water system, also, just so that we’ve got a big problem to untangle.

Let’s back up to the late 1970s. Mr. and Mrs. Hayes owned some land in Manchester and decide to develop that land in to a housing subdivision. It was a different time. There was still lead in our gasoline. Coca-Cola came in glass bottles. “Bad President” was defined as “Peanut Farmer.”

Unstated Intent

Need to shed some light here.
In re Cynthia Pinheiro, 2018 VT 50

By Elizabeth Kruska

Ms. Pinheiro filed a motion for post-conviction relief (PCR) based on a defective plea colloquy. Specifically, her position was that during the plea colloquy where she pled guilty to an assault charge, the trial court didn’t identify the mental element of the crime.

Backing up. In 2014 Ms. Pinheiro pled guilty to aggravated domestic assault for shooting her ex-boyfriend in the leg. When a defendant pleads guilty to a criminal charge, the trial court has to go through a colloquy with the defendant. This is done so that it’s clear that the defendant knows he or she is giving up his or her Sixth Amendment trial rights and in some cases, appeal rights. The court has to be satisfied there are actual facts to back up the charge. Generally, this must be done in open court and the defendant must acknowledge that she is giving up these rights and the facts.

Here, the court asked the State’s Attorney to indicate on the record what it would have to prove at trial, and the facts backing it up. There was some discussion, and in this, the court never advised Ms. Pinheiro of the mental element of the charge she faced.

Alexa, Get Me Off the Registry

Careful what you say . . .
State v. Charette, 2018 VT 48

By Amy Davis

The Vermont Sex Offender Registry is a website available to the public that contains information about sexual offenders in Vermont who are required to register. This case questions whether an individual is required to register if the “victim” in the case wasn’t actually a kid, but an undercover police officer. In other words, does it really count if it’s just a sting? Why yes, yes it does.

Defendant pleaded guilty to attempting to lure a child based on his attempt to meet someone be believed was a minor. Supposedly, this wasn’t the guy’s first time trying to do that. Apparently, someone complained about him talking to minors inappropriately, so an investigator posed as a 13-year-old girl named “Alexa” and reached out to him on Facebook. Honestly, the guy should have just asked an Echo Dot to talk dirty to him (NSFW)—it would have ended better. But he asked “Alexa” to meet up with him for sex and he got arrested when he showed up for the meeting.

The plea agreement called for a to-serve sentence, but the parties disagreed as to whether Defendant was required to register as a sex offender. Defendant argued that the plain language of 13 V.S.A. § 5401(10)(B) requires a minor victim. The statute reads, “A person who is convicted of any of the following offenses against a victim who is a minor… (v) sexual exploitation of children as defined in chapter 64 of this title… (x) an attempt to commit any offense listed in this subdivision.” The court concluded that Legislature intended "minor victim" to include an undercover police officer posing as a minor. Defendant appeals.

Monday, May 7, 2018

Picky Pleadings

Are you sure about this? 
Bonk v. Bonk, 2018 VT 15

By Amy Davis

My primary focus in my law practice is divorce and everything that comes with it, such as, what do we do about the kids? Even if we work out a parenting agreement to finalize the divorce, things can change over time, sometimes warranting a change in the parenting schedule. This case looks at whether the trial court can modify parental rights and responsibilities when it’s not specifically raised in the parents’ pleadings.

Mom and Dad divorced in August 2016. They have two children. The parents resided in Enosburg while married, and after their divorce, Dad remained in Enosburg, and Mom relocated to St. Albans. The children continued to attend the same child care and school programs they did prior to the divorce.

The final stipulation ordered that the parents share legal and physical custody (we call it “rights and responsibilities” in Legal Land). The children’s primary residence was with Mom, and the children would attend school in the town where Mom resided (except St. Albans—apparently the parents didn’t like that school).

Sunday, April 29, 2018

Missing a Piece

You need all the pieces . . .
State v. Sawyer, 2018 VT 43 (mem.)

One day after the shooting at Stoneman Douglas High School in Parkland, Florida left seventeen people dead, Jack Sawyer was arrested and was charged with four felony complaints for allegedly attempting to cause a mass shooting at Fair Haven Union High School. One count alleged that he attempted to cause bodily injury to another with a dangerous weapon. Another alleged that he attempted to commit first-degree murder. The remaining two counts alleged that he attempted to commit aggravated murder.

At his arraignment, Sawyer entered pleas of not guilty, and the trial judge ordered him held without bail.

Vermont law generally prohibits defendants from being held without bail, but makes an exception when two elements are satisfied: one, the defendant is charged with an offense punishable by life imprisonment and, two, the evidence of guilt is great. In Sawyer’s case, the trial judge ruled that the State had satisfied its burden with respect to both prongs.

Credit for Custody?

The "fence" has to be intact
State v. Byam, 2017 VT 47 

By Eric Fanning

Defendant/convict Dale Byam appeals a trial court’s denial of his motion seeking credit for time served while he was under pretrial conditions of release. SCOV affirms—but let’s look at the facts of the case first.

Byam was charged with aggravated domestic assault and cruelty to a child. The Orange County Criminal Division imposed conditions of pretrial release including a 24-hour curfew (with exceptions for legal and medical appointments), and that he had to stay in Orange County. The court allowed two exceptions to his curfew. The first allowed him to leave home on Saturdays from 9:00 a.m. to 12:00 p.m. to run errands like checking his mail, going to the bank, and visiting his mother, etc. The second allowed him to visit one of his kids in Washington County.

While he was out awaiting trial, Byam was arrested in Windsor County after being caught driving with a suspended license, and the State charged him with five misdemeanors: two counts of violating conditions of release, driving with a suspended license, resisting arrest, and escape. He posted bail and the Windsor Criminal Division released him on conditions similar to the ones the Orange Criminal Division had imposed, namely a 24-hour curfew with exceptions for medical and legal appointments. The Windsor court referred his case to the Orange Court, and he ended up pleading guilty to the original charges, as well as escape, and violating his conditions of release. 

Competency Conundrum

Owl give you one chance . . .
State v. Sharrow, 2017 VT 25

By Elizabeth Kruska

Let’s have a little bit of a refresher about competency in criminal cases. The government cannot prosecute someone who is not competent to be prosecuted. Competence in the criminal court context is a little different than competence in other areas. Someone could need to have a guardian for purposes of their finances, but be perfectly competent to stand trial in a criminal case. The relevant question is whether a defendant has the present ability to consult with his lawyer with a rational degree of understanding, and whether the defendant has a factual understanding of the proceedings.

Sometimes a person just can’t do it. Whether it’s because of mental illness or even potentially because of organic brain issues, like dementia, a person just might not be able to communicate with his or her lawyer or understand what’s going on.

Even though sometimes it seems clear that someone is or isn’t competent, the court needs to make findings before ruling on the question of competence. The way to get to that ruling is to have testimony from someone qualified to make that determination. That person usually is a forensic psychiatrist.

Sunday, April 22, 2018

Overlooked Objection

Any objections? 
In re Sharrow, 2017 VT 69

By Andrew Delaney

This is a “Yeah, but . . .” appeal.

Attempted second-degree murder is one of those charges that requires the State to prove that there wasn’t any passion or provocation. And attempted voluntary manslaughter is generally a lesser-included offense. Mr. Sharrow’s trial counsel failed to object to jury instructions that didn’t have these elements, and Mr. Sharrow was convicted of second-degree murder.

So Mr. Sharrow filed a post-conviction-relief (PCR) complaint. The PCR court said, “Yeah, that’s not good. We’re going to vacate your conviction because trial counsel was ineffective.” The State appeals, arguing “Yeah, counsel was ineffective, but it wasn’t prejudicial, so the conviction shouldn’t be vacated.” SCOV disagrees with the State and affirms the PCR court.

Sunday, April 15, 2018

Crushing Expectations

It puts the granite in the crusher.
In re North East Materials Group LLC, 2015 VT 79


This is a prequel. I’m no George Lucas, but I can do things out of order too. Here’s the aftermath, which I’ve been told I missed some of the facts in. I can’t promise this one is going to be any better in that regard. Grossly oversimplifying is kind of what we do here. 

This case is about whether multiple quarries and one stone-crushing operation before 1970 grandfather a post-1970 rock-crushing operation. The trial court concluded that “pre-1970 dimension-stone-quarrying operations included intermittent crushing operations throughout the large tract, and that the new crushing operation thus fell within the grandfathered development and did not constitute a cognizable physical change to that preexisting development.” The SCOV majority concludes that the trial court used the wrong legal framework and one of its critical findings wasn’t supported by the evidence. So the whole thing gets kicked back to the trial court (and then goes back to the SCOV, which you can read about here).

So . . . between ’08 and ’12, district coordinators issued a series of jurisdictional opinions with the same conclusion” that North East Materials Group LLC’s (NEMG) rock-crushing activities didn’t need an Act 250 permit because there wasn’t a cognizable change from pre-1970 stuff. Thirteen neighbors calling themselves Neighbors for Healthy Communities (Neighbors) appealed a 2012 decision to the Environmental Division, which reached the same no-cognizable-difference conclusion.

Bail Affirmed

What's the connection? You tell us. 
State v. Stimpson, 2017 VT 97 (mem.)

By Elizabeth Kruska

This is a bail appeal, so it’s fairly short and was heard by three justices.

Mr. Stimpson was initially charged with domestic assault in June of 2017. He pled not guilty to the charge and was released on some conditions of release, including that he could not have contact with the complainant and had to stay at least 300 feet away from her, her home, and her workplace. No monetary bail was set.

This is pretty common. What is less common is what happened next. 

Service Smirkus

Redo? 
Cramer v. Billado, 2017 VT 38

By Eric Fanning

I’d hate to be accused to beating a dead horse right off the bat here (no pun intended), but if you’re served with a lawsuit, you gotta show up to court. That’s day one stuff, people. Yet, here we go again!

The parties in this case divorced in 2007. As part of the original divorce decree, they agreed that the defendant, James Billado, would pay the plaintiff, Laura Cramer (formerly Billado) $50,000 to buy out her share of their business. Billado asked the court to set aside the stipulation after he signed it because he found out that Cramer had been stealing money from the business. The court had a hearing and decided that they were both up to some funny business with the books, and at best, Billado turned a blind eye to Cramer’s poor bookkeeping, since he benefited too. So, the court affirmed the order, and Billado was stuck with a $50,000 judgment as part of the divorce.

The divorce judgment went unsatisfied for years, and in 2015, Cramer brought a foreclosure action against Billado after recording the judgment lien in the Bakersfield land records. She couldn’t get proper service on him (which usually means a sheriff physically hands you the summons and complaint), so she got the court’s permission to serve him by alternative means—in this case, by tacking a copy of the summons and complaint to his front door. 

Misplaced Reliance

Just pretty. Nothing to do with probation
State v. Stern, 2018 VT 36

By Elizabeth Kruska

The takeaway message I get from this particular opinion is this: If you have a legal question, ask a lawyer. Because if you ask someone else, they might give you an answer that isn’t correct, and you might do something (or not) because you think it’s legal but it’s really not.

Here’s what happened to Mr. Stern. He pled guilty to a domestic assault charge and received a deferred sentence. He was on probation for one year. At some point during his probation he asked his probation officer if he could possess a firearm. The PO is recalled as having responded along the lines of, “I’m not a lawyer, but I think it’s okay.” Nope. Not legal. In possibly more than one way.

But, Mr. Stern didn’t call his lawyer to find out the answer to the question. Instead, he motored forward, possessing a firearm in violation of state law (and possibly also in violation of federal law, but that’s not the question we need to deal with in this particular case). On three different occasions he encountered the State police, and each time he told them he had a firearm.

Slide Away

Slide, Slide . . .
Perron v. Menard, 2017 VT 50

By Elizabeth Kruska

I happen to like extradition cases. I like them because extradition is really very technical and very precise (except for when it’s not, but this is not one of those times). Sometimes it’s a little bit like solving a puzzle, which I also find very appealing.

Basically, extradition is like a slide. It’s meant to slide someone to a state where they’ve got legal troubles from the state where they were found. If a person is found in State A, but has an outstanding warrant for a crime in State B, extradition is the means by which the person gets back to State A to clear up whatever the problem is. State A doesn’t have any jurisdiction to hear the case that originated in State B. State A does have an obligation to make the person available to State B so that State B can come get them to deal with their State B charges.

It’s sometimes referred to as a fugitive case. It’s not really as romantic as it sounds; rarely does it involve Dr. Richard Kimble or a one-armed man. And it doesn’t even necessarily involve someone fleeing a jurisdiction, running for a border, or being hotly pursued by law enforcement. It just means that someone’s alleged to have committed a crime in State B and then is later found in State A.

Here Comes the Sum

So many puns, so little time
Russell v. Hernon, 2017 VT 45

By Elizabeth Kruska

This is a civil case concerning a breach of contract or contracts. There was a trial, the jury found for the plaintiff, and the defendant appealed. To skip ahead to the fun part, SCOV affirms most of it, but reverses a portion and remands the matter to the trial court to re-calculate pre-judgment interest.

Mr. Russell and Mr. Hernon decided in 2011 or so (probably before, but 2011 is the earliest date I see in the opinion) to develop commercial solar panel installations and possibly sell some solar tax credits. Mr. Russell was the Ideas Guy, and came up with the concept and acted as administrative head of the effort. He got the permits, found engineering support, and worked with Mr. Hernon and his lawyer and accountant to come up with information for prospective investors.

Mr. Hernon formed an LLC called Springfield Net Metering. For tax reasons it elected to be taxed as a subchapter “S” corporation. Because of this, it turned out that Mr. Russell didn’t have a tax basis, and therefore no direct investment. Therefore, they decided Mr. Russell would get paid in cash. But then he didn’t get paid in cash or in any other way, so he filed suit. 

Saturday, March 31, 2018

Just the Facts, Ma’am

To, too, two. 

In re Gabree, 2017 VT 84

By Elizabeth Kruska

Basic facts: Alexis Gabree was charged with two counts of grossly negligent operation with death resulting when she drove her car seventeen miles per hour over the speed limit, nine feet left of the centerline, and with eleven different drugs in her bloodstream. When she did this, sadly, she hit another car and two people in that car died.

She was charged, and ultimately pled guilty to two counts of grossly negligent operation with death resulting. She negotiated a resolution where she would be sentenced to 6-15 years to serve and also agreed she could not drive a vehicle without express permission of the court.

When someone pleads guilty to a charge the court is required to engage in a verbal colloquy in order to make sure the court is satisfied the person understands what they’re doing. In Vermont we often refer to this as a “Rule 11” because the proceeding tracks Vermont Rule of Criminal Procedure 11. And because I can’t say how many times I love the Sixth Amendment, I’ll just add that much of this colloquy is basically a recitation of the rights guaranteed to a criminal defendant by the Sixth Amendment. 

Disposition Report Review

And one thing led to another . . .
In re Kane, 2017 VT 48

By Elizabeth Kruska

One thing the Vermont Supreme Court is called upon to do is to review Judicial Conduct Board opinions and decisions. That’s what they do here.

Let’s back up. We have judges—some are appointed, and some are elected, depending on the situation. Regardless, both flavors of judge are bound by the Code of Judicial Conduct. It’s made of several canons, all of which, when read together, are meant to control and govern judges’ behavior and conduct. The Code applies to elected judges as soon as they declare candidacy for the position. The Board retains jurisdiction if a complaint is made within three years of the discovery of grounds for the complaint.

I’m not going to re-hash the facts here, because the Board wrote a little over twelve pages of facts, and it’s worth reading. To boil it way down, a complaint was filed against Paul Kane, a former assistant judge, for his handling of and involvement in an estate. This isn’t an estate that he handled as a judge—it was a family friend’s estate where he had personal involvement. The best way I can envision this estate is like a radar depiction of a hurricane; there was the main issue in the middle, but several smaller arms of issues sort of radiating off and spinning out of the center.

Tuesday, March 27, 2018

Arbitration Initiation

I'd call this extreme.
Hermitage Inn Real Estate Holding Co., LLC v. Extreme Contracting, LLC, 2017 VT 44

If you can say that title five times fast I’ll give you the deed to my house.  Just kidding—I rent. [Pause for laughter] . . . All jokes aside, we have a contract dispute to suss out folks, so let’s get serious.

We see a lot of contract disputes and arbitration clauses around here at SCOV Law (for example, this recent piece from our editor), so I’m not gonna reinvent the wheel.  Hermitage Inn Real Estate Holding Co. hired a firm called Extreme Contracting (yikes!) to do some work on the Hermitage Base Lodge Project.  (Just as an aside, I’ll never make enough money to even set foot on the grounds there, but from the website it looks like a very nice place!)  (Just as another aside—as this piece was being written, news came out that the Hermitage Club is facing bankruptcy, so I might not have a chance to visit there anyway!).  The contract was for $681,987.81.  Not quite up to Dr. Evil’s standards, but still a good amount of cash.

Saturday, March 17, 2018

Same as the Other

And so, as the force transfers . . .
In re Moyer, 2018 VT 29 (mem.)

By Andrew Delaney

If a lawyer has multiple law licenses, and the lawyer gets in trouble in one of the places he has a license, then he’s generally subject to reciprocal discipline. It’s kind of like if you lose your driver’s license in one state, you generally lose it in all states. This case is not an exception to the rule.

Side note: when available, I tend to link to the Google Scholar versions of cases. That’s because the links are to regular webpages as opposed to the Vermont Judiciary links which are to PDF files and can be problematic. The Google version of this case linked above does have a big ol’ “Do Not Publish” on its version. I assure you that the PDF on the Judiciary site has the “Publish” box checked. I don’t know as anyone besides me really cares . . . but now you know. Google? If you’re listening, could you fix that, please?

Attorney Moyer is licensed in Tennessee and—one must assume—Vermont. The Tennessee Board of Professional Responsibility found that Attorney Moyer collected partial fees from bankruptcy clients and requiring installment payments on the remaining fees after their bankruptcy petitions were filed.

One For You, Nineteen For Me

That is one weird mug. 
Vermont Department of Taxes v. Montani, 2018 VT 21

By Elizabeth Kruska

In the spirit of maple-sugaring season, I’m going to boil this way, way down. Then I might have some pancakes, because they’re basically just a syrup delivery system, and syrup is delicious and magical. I tend to prefer Grade B, which I think now is called Very Dark. Whatever it’s called now, it tastes very, very good.

Here’s what happened. The Vermont Department of Taxes tried to collect on some old tax debts from a handful of taxpayers who didn’t file tax returns. The Tax Man* is allowed to do this, because the Commissioner of the Department of Taxes is charged with the duty of collecting taxes.

So, three separate taxpayers didn’t file returns over various years in the early 2000s. The Tax Department sent notice, and the taxpayers didn’t do anything in response to that notice. The Tax Department then went to court to enforce those defaults as collection actions.

Friday, March 16, 2018

Probation Conditions: A Perennial Favorite

Is this necessary? Maybe. 
State v. Urban, 2018 VT 25

By Elizabeth Kruska

Probation conditions! Again! We should be good at this by now!

So here we go into this one. Mr. Urban was convicted of some assault offenses and received a suspended sentence with probation. With probation comes probation conditions. As we know, probation conditions are supposed to be tailored to the individual situation so as not to be overbroad.

During Mr. Urban’s sentencing, he reserved the right to appeal the imposition of the so-called “no alcohol” condition. It’s called that because it prohibits the purchase, possession, or consumption of alcohol. We lawyer-types don’t always overthink everything, I promise. Mr. Urban argued that the “no-alcohol” condition couldn’t be imposed because of a SCOV decision in State v. Albarelli, which struck down a similar condition for a defendant on public policy grounds.

Monday, March 5, 2018

A Question of Time

Skidmore v. Dept. of Labor, 2017 VT 65


Appellant Margaret Skidmore, otherwise known by SCOV here as “Claimant,” was injured on the job in April 2013, and hasn’t had full-time work since then.  She comes before SCOV pro se (without a lawyer) to appeal the decision of the Department of Labor’s Unemployment Insurance and Wage Division denying her continued weekly unemployment benefits.

For the sake of consistency- I’ll continue to call Skidmore “Claimant.”  So, anyway, Claimant was injured and left work in April 2013 and started receiving workers comp.  She received temporary total disability wage replacement benefits until March 20, 2015.  Remember that date, because it becomes important later.

On May 18, 2015, she called the Unemployment Division of the Department of Labor to ask about unemployment benefits.  Unbeknownst to her, the Unemployment Division, which oversees unemployment benefits, opened a claim after taking down her Social Security number and other relevant information.

Friday, February 23, 2018

Keep Your Hands To Yourself

It's all connected in some way
State v. Discola, 2018 VT 7

By Elizabeth Kruska

Here are the basic facts. Mr. Discola was charged with multiple counts of lewd and lascivious conduct. The State alleged that during the Burlington Marathon in 2015, Mr. Discola, in apparently a few different locations along the marathon route, touched three female spectators on their respective rear ends. A runner in the relay saw one of the touching episodes and also took a photo.

A police officer saw this fellow sort of hanging around a group of girls and became suspicious based on this man’s behavior. He asked Mr. Discola what he was doing and Mr. Discola said he was meeting a friend for burritos. I suppose this makes sense where “meeting a friend for burritos” is code for “touching women inappropriately during the Burlington Marathon.” The police officer, apparently not entirely convinced, took a photo of Mr. Discola. You know, just in case it turned out something was afoot.

I’ll interject here and say that I really enjoy running in road races. I am not fast, but I enjoy training for and running in races. Lots of other people feel the same way I do. These are events that bring that bring out big crowds, and big crowds often need police to help keep things under control, which is how the officer I mentioned above came in to contact with Mr. Discola.

Not Much to Talk About . . . Yet

And . . . we're done. 
Wash. Super. Union v. Cabot Teachers' Ass'n, 2018 VT 24 (mem.)

By Andrew Delaney

This is my favorite kind of opinion to summarize—one paragraph long. The Board of School Directors of Washington Northeast Supervisory Union appeals the Labor Relations Board conclusion that the Cabot Teachers’ Association didn’t commit an unfair labor practice by declining to engage in collective bargaining in a public session.

Because SCOV issued another opinion today that resolves the whole negotiating-sessions-are-subject-to-public-meeting-requirements argument (based on this one-paragraph opinion, I’m guessing that’s a no), the Labor Relations Board’s decision is affirmed.

And we're done . . . for now. Stay tuned for the actual opinion that dictated this one.

Sunday, February 4, 2018

Delay of Game?

Better figure somethin' out soon. 
Adams v. Barr, 2018 VT 12

By Andrew Delaney

The lesson in this case is: “Don’t wait until the last minute.” I suppose, in life, that’s a universally applicable lesson. In this case, for Mr. and Mrs. Adams and their construction company, it’s an expensive lesson as well. And in the spirit of Super Bowl Sunday, we could say, “Don’t let the play clock run out before calling a time-out.”

Barr Law Group filed an arbitration demand against Adams Construction with the American Arbitration Association (the “other” AAA) “claiming that Adams Construction had failed to pay Barr Law Group more than $40,000 in fees for legal services.” Adams Construction filed an answer and counterclaim for $97K. There was discovery, conferences, scheduling, rulings, and yadda, yadda, yadda the case headed to hearing.

But one week before the scheduled three-day hearing, Adams Construction said something like, “Whoa. Hold up. We never should’ve agreed to this arbitration thing. It’s unfair and Barr tricked us into it. We object.” Adams Construction filed an objection to the arbitration and moved to dismiss it. Adams argued, for the first time, that the arbitration provision in the fee agreement was unenforceable. Adams Construction cited legal authority that arbitration provisions are supposed to be fully explained and disclosed. Adams Construction said Barr didn’t do any of that stuff. As to its delay in raising the issue, Adams Construction indicated that it had only recently learned of the legal basis for objection before raising it. 

Sunday, January 28, 2018

Timing Is Everything

Like sands in an hourglass . . .
State v. Scarola, 2017 VT 116

By Elizabeth Kruska

OK, maybe timing isn’t exactly everything, but timing is a big piece of why this particular case got affirmed. Timing is also the reason this case might have burst into a fiery mess of a procedural sideshow, but didn’t because SCOV affirmed.

The underlying facts are horrible, In 2013, Mr. Scarola beat up his wife with a baseball bat, nearly killing her. By some miracle, she survived, and he was charged with aggravated domestic assault and attempted second degree murder. That later got upgraded to attempted aggravated murder. There are lots of news articles about the facts; they need not be fully recounted here.

The case headed toward trial, and in March of 2015, the parties had a pre-trial hearing on some evidentiary issues. After that hearing, the judge called the attorneys in to chambers to inquire if the case was going to go forward to trial, or if there was some sort of plea agreement also being discussed. The judge apparently suggested that 20 years to life seemed like a reasonable sentence, given the situation.

Saturday, January 20, 2018

Needy or Not?

What's in your wallet? 
State v. Kittredge, 2018 VT 6 (mem.)

By Andrew Delaney

Mr. Kittridge got charged with a bunch of crimes, including neglect, manslaughter, and welfare fraud. He requested a public defender and the trial court denied the request at arraignment. Mr. Kittredge was released on a $25K unsecured appearance bond. He reapplied for a public defender and the trial court again denied the request because Mr. Kittredge’s income exceeded the financial guidelines. He moved to reconsider the public-defender denial. Again, the trial court denied the request because Mr. Kittredge’s “income and family size disqualify him from receiving a public defender.”

That brings us to SCOV’s door.

Generally, denial of public-defender services is left to the trial court’s discretion. In this case, however, SCOV considers “whether the trial court conducted the proper analysis in determining whether to appoint counsel.” This is a no-deference analysis.

Who’s on Your Ballot?

Decisions, decisions . . .
Paige v. State, 2017 VT 54

By Eric Fanning

Get ready, SCOV Law readers, 2016 is back . . . with a vengeance!

Appellant H. Brooke Paige is a Vermont voter, and was a candidate in the state’s 2016 presidential Republican primary. Back in December of 2015, when primary season was in full swing, he filed a declaratory judgment action and asked for a temporary restraining order against the State of Vermont, the Secretary of State, and the Attorney General. 

Paige sued to block the inclusion of Senators Marco Rubio and Ted Cruz on the Republican primary ballot on the basis that they were not qualified to run for President of the United States (Paige is playing the you’re-not-a-natural-born-citizen card). His complaint claimed that, by putting unqualified candidates on the ballot, he would be deprived of his 5th and 14th Amendment rights as a citizen, and, as a candidate, he would “suffer the prudential debilities of having to contend with candidates who are not qualified” like competing for signatures, money, media coverage, votes, and all that jazz.

Sunday, January 7, 2018

Location, Location, Location

What's goin' on in that spot? 
In re North East Materials Group LLC, 2016 VT 87

By Andrew Delaney

Sometimes it takes us a little while to get around to cases here at SCOV Law. This is a late-2016 decision, and for some reason it’s never been picked up by any of our writers. But it’s 2018 now, so we need to get 2016 wrapped up.

Location matters. That’s the two-word version of this case. 

This is the second round, but we haven’t gotten to the first one yet either, so we’re starting from scratch here. Briefly, in the first round, a group of neighbors appealed and SCOV reversed because the environmental division has used the wrong legal standard in determining that North East Materials Group LLC (NEMG)’s rock-crushing operation didn’t “constitute a cognizable physical change to the preexisting development.” SCOV also concluded that one of the factual findings in support of the environmental division’s conclusion was “totally whack.” So, the case went back to the environmental division, which on remand again concluded that the rock-crushing operation was exempt from Act 250 as a preexisting development. The neighbors appeal again and the majority goes with the neighbors. Here we go again.