Huh? Is it August Already?

By Andy Delaney

Well, the building may have been closed due to the flooding, but SCOV didn’t stop writing. Three opinions Friday, August 4, and one entry order on Thursday, August 3.

We’ll start with that entry order. In a nutshell, this case is about remedies and mootness. Landlord filed suit for ejectment. The trial court granted tenants motion to dismiss. Landlord appeals but—and here’s the twist—in between the notice of appeal and filing their docketing statement, tenants moved out. Because landlord had sought only ejectment and because damages in this context are derivative of ejectment, once landlord got his relief (possession of the premises), the case became moot. SCOV concludes that the case is moot, no exception applies, and dismisses the appeal. Handy v. Fiske, 2023 VT 46 (mem.)

The first opinion for the week is about ethical representation. Respondent did some work for client at client’s son’s direction. Respondent didn’t discuss anything with client but had her sign estate-planning documents that created all kinds of issues. Turns out that client was suffering from Alzheimer’s and dementia. But respondent acted on behalf of client at son’s direction without having any real conversations with his client. I would say the moral of this story is “know your client.” The professional responsibility board found that respondent had violated several ethical rules and ordered a five-month suspension. SCOV reviews on its own and says, “Nah. A year is more appropriate to protect the public.” And that’s what happens. In re Manby, 2023 VT 45.  

Next, we jump into the family law fray. Husband and wife entered into a prenuptial agreement in the ’80s . Then, in the ’90s, husband’s plumbing business got into trouble, wife went to work for the business and helped rebuild and improve the business, and husband kept the money, controlled the finances, and kept shoveling profits into his personal investments. Things went well and after selling the business, the family (the parties had one daughter) started traveling and living off the interest on investments. In the meantime, however, the parties did nothing that they were supposed to with the prenuptial agreement. It lived in a drawer, forgotten like a microwave manual. When the parties got divorced, husband dragged it out of the drawer and tried to enforce it. Wife said it was unconscionable. The trial court looked it over and reasoned that the parties had waived the prenup and divided property accordingly. It also imposed a condition on husband doing family therapy before increasing time with daughter. Husband appeals. He argues that the prenup is good and that the family division overstepped when it ordered therapy. SCOV finds no error. It reasons that the parties failed to follow nearly every provision of the prenup. SCOV also concludes that the trial court’s imposition of family therapy was not an abuse of discretion given the findings below. Rock v. Rock, 2023 VT 42.

Lastly, for this week, we have a public-records appeal. The dispute arises from a government watchdog group—Energy Policy Advocates—seeking public records from the State. The AG’s office withheld certain documents under the “work-product doctrine and attorney-client privilege.” As is common in these circles, that denial led to litigation (four suits, in fact, later consolidated to one). The AG moved for summary judgment and the trial court partially granted the motion, though it did order certain agreements be turned over to plaintiff. Plaintiff moved for attorney’s fees on grounds that it had substantially prevailed, and the trial court ordered partial fees while doing an Oprah-esque “everybody substantially prevails!” kinda thing. Both parties appeal—plaintiff arguing that the trial court should have turned over more documents, abused discretion in not ordering an in-camera review of certain docs, and more, and the AG arguing that plaintiff shouldn’t get any attorney’s fees at all because it didn’t substantially prevail. On appeal SCOV affirms the trial court’s handling of the document requests but reverses the attorney’s fees award on the basis that plaintiff did not substantially prevail (SCOV notes that if plaintiff had prevailed, it wouldn’t be appealing on so many grounds). Energy Policy Advocates v. State, 2023 VT 43.          

SCOV issued one opinion on July 21st and one opinion on the 28th.

We’ll start with the July 21 opinion. Defendant’s 14-year-old daughter accused him of sexual assault. The police asked daughter if there might be any DNA evidence at the family home. Daughter supposed there probably was in her room. So, while dad and dad’s wife were at the arraignment, daughter went to the family home with the cops and DCF and they eventually searched a trash can where they found some DNA evidence. The trial court denied defendant’s motion to suppress and to dismiss for speedy trial rights. Defendant was convicted of sexual assault of a child. Defendant appeals. SCOV affirms. On appeal, SCOV reasons that daughter had authority to consent to the search. Defendant’s speedy-trial rights weren’t violated (In the totally unsurprising news department: COVID seems to have changed the traditional analysis here). SCOV affirms. State v. Boyer, 2023 VT 40.

This 28th’s opinion is about divorce, access to public records, and ex-parte RFA filings. After moving to modify parent-child contact, father found out about mother’s ex-parte applications for RFAs on behalf of their children. So father wanted to see copies of those unsuccessful ex-parte applications. The trial court allowed father access to the orders denying the applications, but not the underlying complaints and affidavits. Father appeals. On appeal, SCOV frames it thusly: “The only issue before us is whether father should have been granted access under the Public Access Rules to mother’s ex-parte RFA complaint and affidavit.” SCOV reasons that father does not get the ex-parte applications under a plain reading of the rules (despite father’s public policy arguments about a defendant’s right to access to allegations against him) when an application is denied by the trial court. SCOV further reasons that father’s other arguments (under family procedure rules) for access are not preserved. Phillips v. Phillips, 2023 VT 44.