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| It's surprisingly difficult to find good law-related memes. So this is what you get. |
Two opinions from the 22nd. Do you know whether one would capitalize a spelled-out date? Me neither. That's at least one of the reasons why y'all get "the 22nd."
Anywho . . . we start off with a foray into estate planning litigation, on an issue I've never seen before: the elements of a cause of action for breach of a contract for mutual wills. Long story short, because that's what we do here, one of three kids got cut out of mom's will in 2006 after a falling out. (Mom and dad had actually divorced in the late '70s but stayed close, held a lot of jointly titled property, and had executed mutual wills in Arizona in '97). Dad died in 2010 and pretty much everything went to mom through survivorship. Then mom died in 2016 and mom's 2006 will went through probate. Initially, disinherited daughter challenged the will in probate court, but the probate court allowed the will and SCOV affirmed (see numero cuatro in this post), but noted that disinherited daughter had a claim for breach of contract against the estate. She brought that claim (and others) in the civil division. After a merits hearing, the civil division concluded that dad didn't detrimentally rely on mom's promise; that dad had notice of the change and an opportunity to revise his own will; and therefore the contract for mutual wills was unenforceable (or never became enforceable). Further, even if consent was required for mom to revoke her mutual will, the trial court reasoned, that was present here because dad knew that mom had changed her will and didn't change his own. Hmm.
On appeal, SCOV reverses. We're going to take a quick detour. Imagine an appellate court says, "Hey this person has a claim for ___." Then imagine that the trial court says, "Nope. Not seeing it." What do we—the royal we—think the appellate court is going to do with that? Like my dad used to say, "I'll give you three guesses and the first two don't count."
SCOV first notes there doesn't appear to be any conflict of law between Arizona (where the mutual wills were executed) and Vermont for its purposes in this appeal but that if a conflict arises on remand, the parties can take it up then. SCOV then looks to the nature of the contract. Daughter argues that the contract for mutual wills in enforceable in its own right and that the trial court erred in concluding that unilateral notice was sufficient for rescission. SCOV agrees, reasoning that while there is a split on the issue, there must be mutual consent to revoke a contract for mutual wills, which was not present here. SCOV then takes up the issue of whether mutual consent was present here (as the trial court found). SCOV, and I'm paraphrasing, says "Failing to object ain't the same as agreeing." There are some standard-of-review jokes to be made here, but I don't think I'm allowed to make them since I also wrote the setup. There's an interesting double-hearsay issue on a statement the estate wanted to get in to show consent but the trial court excluded. SCOV reasons that the trial court was justified in excluding the statement.
So, because unilateral notice was insufficient to rescind and because there wasn't sufficient evidence of mutual consent, SCOV sends this one back to the trial court with instructions. Inouye v. Estate of McHugo, 2024 VT 75.
Our second case for the week is an appeal from an aggravated-assault conviction. Defendant was charged with "attempted second-degree murder for allegedly stabbing his roommate in the neck with a fillet knife in November 2019." He claimed self defense. A bartender testified to some damaging statements defendant made the night of the incident. Defendant asked the court to take judicial notice that the bartender had a recent DUI charge that was dismissed without prejudice several months before trial. The court declined the invitation but indicated defendant could recall the bartender and get into it. Defendant declined to do so. Before the case went to the jury, defendant moved for a mistrial based on jurors not being able to hear defense counsel's questions (this was a June 2022 masks-on trial and the jurors, according to the court, were having issues hearing defense counsel's questions) and a discovery violation in not turning over bodycam video of statements the bartender made. The trial court denied the motion. The jury convicted defendant of the lesser-included offense of aggravated assault. Defendant moved for a new trial, which was denied.
Defendant appeals, arguing that the trial court should have questioned the jurors about their ability to hear and failed to provide a way for defendant and counsel to have private conversations, these things constituting plain error and structural error. SCOV concludes that while there were some errors—for example, the court could have gotten a bit more specificity about what the jurors were and weren't able to hear—overall, those errors did not rise to the level of structural error. A structural error is one that affects the framework of the entire trial. Here, that didn't happen. The trial court told defense counsel that some jurors were having trouble hearing defense counsel's questions (though there was no indication they couldn't hear the testimony). Defense counsel didn't get into it then or follow up then, but moved for mistrial the next day. SCOV reasons that because the error didn't affect the jury's functioning, it's not a structural error. SCOV also declines to find plain error here.
SCOV then turns to defendant's issues with the discovery-violation ruling. The trial court found that defendant wasn't prejudiced because it was unclear what defense counsel would have done differently had the video been disclosed. Defense counsel indicated he would've deposed the bartender and explored motive. The court offered defendant an opportunity to depose or question the bartender outside of the jury's presence. Defendant declined to do so and did not recall the bartender. SCOV concludes that defendant fails to show he's entitled to a new trial on the basis of the court's discovery-violation ruling.
Similarly, SCOV rejects defendant's argument that he's entitled to a new trial on grounds that the trial court's failure to take judicial notice of the bartender's DUI charge and dismissal was in error. SCOV reasons that the trial court made a probative-value-versus-unfair-prejudice determination and that the trial court was within its discretion in denying the motion for judicial notice.
Accordingly, this one gets affirmed. State v. L'Esperance, 2024 VT 74.
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