Weekly Update: May 29, 2020

Yep. Still a calendar. 

By Andrew Delaney

Each week, we do a quick summary of the cases issued over the past week (or so) for our writers and for the VTAJ listserve. To keep our readers up to date as decisions are issued, we also publish those weekly summaries here. Enjoy!

One opinion issued on May 22, 2020, though it did not get posted that day. That's my story anyway. 

Not cooperating in a disciplinary investigation will get your bar card stamped “suspended.” Attorney Legus allegedly pulled a gun on a store clerk. But that’s not the main reason for the suspension. The main reason is that she maintained radio silence when disciplinary counsel tried to get in touch with her. Bar counsel moved for immediate suspension and SCOV reckons that’s warranted here. In re Legus, 2020 VT 40 (mem.)

This week starts off with a contract dispute. Construction Drilling, Inc. (CDI) subcontracted with Engineers Construction, Inc. (ECI) on a bridge replacement job. The work CDI was doing had a higher, additional price for “obstruction drilling.” In the course of drilling one hole CDI got a drill stuck and it took some time to get it out. CDI didn’t tell ECI that it was considering the stuck drill “obstruction drilling.” When ECI didn’t want to pay the bill, CDI sued. It didn’t go well. The trial court found that CDI had to—and didn’t—notify ECI of the change in work and that meant not only that ECI didn’t have to pay the bill, but ECI got nearly the original contract price in attorney’s fees. Ouch. The SCOV majority affirms everything, though with slightly different reasoning, and doesn’t get to ECI’s cross appeal (about qualifying CDI’s owner as an expert). Justice Carroll, joined by Justice Robinson, dissents on the basis that no change order notice was required under the parties’ contract. Construction Drilling, Inc. v. Engineers Construction, Inc., 2020 VT 38.

Next up we have a criminal case. Defendant was convicted of sexual assault after a trial where there was a substantial question of whether the jurors could hear all the bench conferences. Defense counsel seemed to be okay with a curative instruction and the trial judge didn’t dig too deep into the issue. SCOV reverses on the bench-conference-eavesdropping issue and doesn’t get to defendant’s other arguments. SCOV concludes that the trial court’s failure to investigate what was overheard was plain error and denied defendant of his right to a fair trial. State v. Kandzior, 2020 VT 37.

The final case for May 29, 2020 is another criminal appeal. This is a search-and-seizure and animal forfeiture case. The police got a warrant after entering defendants’ trailer with the landlord and observing over 20 animals in questionable conditions. The trial court denied the motion and reasoned that the first entry into the trailer wasn’t unlawful because there were exigent circumstances. On appeal, the State concedes that the exigent-circumstances exception doesn’t really fit. But SCOV nonetheless reasons that assuming the initial search was illegal, there was enough other information in the affidavit—not illegally obtained—to establish probable cause. On the forfeiture side, however, SCOV concludes that considering the hearsay statements (from folks other than the trooper) in the trooper’s affidavit was wrong and reverses that part of the case for the trial court to reconsider without considering the hearsay. State v. Ferguson, 2020 VT 39.