Monday, March 16, 2015

Size Does Matter

State v. Hurley
2015 VT 46

By Amy Davis

Graduation tassels, air fresheners, and fuzzy dice have all sat in the trunk of my car anxiously waiting for the day when I can proudly display them from my review mirror.  Unfortunately, they probably still need to wait.

In June 2013, Defendant Hurley was driving through downtown Bennington when he was stopped for having a pine tree-shaped air freshener hanging from his rear view mirror in violation of 23 V.S.A. § 1125.  Based on the officer’s subsequent observations, Defendant was charged with driving over the legal limit and DUI.  Defendant moved to suppress and dismiss, arguing that the air freshener did not materially obstruct his vision.  At the subsequent bench trial, the officer admitted that a driver could see the road even with the presence of an air freshener.  The trial court denied the suppression motion, concluding that the statute prohibits the hanging of all objects from review mirrors, except those exempted by statute.  Defendant was later convicted and now appeals.

The statute on which the officer based the traffic stop states that you cannot hang any object (other than the rear view mirror) on the back of the windshield.  The statute identifies some exceptions, none of which include the ability to hang pine-scented goodness from your rear view mirror.  The question for SCOV is whether the statute prohibits all objects hanging from the rearview mirror, or only those that materially obstruct the driver’s vision.


Party Like It's 1828

Flex-A-Seal v. Safford

Just the other day, I thought, “Gee, I wonder how many cases from the 1800s still apply today,” then this gem fell into my lap.

Flex-A-Seal sued Safford in 2001 for embezzling funds during her employment with Flex-A-Seal.  Safford and Flex-A-Seal settled, and in October 2002, the court issued a stipulated judgment order pursuant to that agreement, in the amount of $230,000.  In November 2004, Flex-A-Seal filed a motion for trustee process against earnings.  The court issued a stipulated order stating the original judgment amount, adjusted with interest, and also suspended the post-judgment interest after October 28, 2004 as long as Safford stayed employed at the same place.

Many years later, in April 2012, Safford changed jobs, so Flex-A-Seal filed a complaint to renew its judgment against Safford, and another motion for trustee process against Safford’s earnings.  Safford, proceeding pro se, did not question the timeliness of the motions.  The court, however, sua sponte, raised the question, citing 12 V.S.A. § 506 that imposes an eight-year time limit on filing actions on judgments.  Safford thought, “yeah what a great point” and raised the defense in her answer.

Thursday, March 5, 2015

Not Irrational, Actually

In re C.F., 2015 VT 45

By Elizabeth Kruska

One of these days there’s going to be a termination of parental rights decision that gets reversed. Today is not that day.

C.F. was born in January 2011. He was taken into custody by DCF in May 2013 as his parents struggled with addiction. C.F. was placed with his paternal grandmother, which is where he had been living for about 6 months at that point. Mom was having a really hard time with her addiction and wasn’t able to parent C.F. She ended up getting charged with lots of charges and went to jail. At one point during the course of the juvenile case the Family Division imposed a no-contact order between Mom and C.F.

Dad also had an opiate addiction. Dad had a slow start to get going on his own rehabilitation, but started making progress. He went to a treatment program, he was on probation and complied with his probation requirements, and he helped his mom with C.F. pretty much every day.

Sunday, March 1, 2015

In Moot We Trust

In re Trust of Virginia B. Newman, 2015 VT 14

By Andrew Delaney

Roger and Frank are brothers. Their mom, Virginia, established a trust in the mid-1980s. The trust went through various revisions, but in its final pre-litigation formulation Virginia, Frank, Roger, and Bank of America were co-trustees.

I usually try to skip the dates, but they seem important here. In January 2012, Roger petitioned for an accounting based on his concerns about unexplained disbursements from the trust principal. In July 2012, he filed a complaint for breach of trust against Frank in the probate division. In February 2013, Frank petitioned to remove Roger as co-trustee. Frank agreed to resign as co-trustee so long as Roger was removed. In March 2013, the probate division placed Virginia under a guardianship, and also issued an order that essentially removed all the trustees and appointed Trust Company of Vermont (TCV) as sole trustee. The probate division figured that given the ongoing conflict between Roger and Frank and, you know, that nobody wanted to work with them, and the detrimental effect the conflict imposed on Virginia, it made the most sense to appoint a sole neutral institutional trustee.

Saturday, February 28, 2015

F is for Foreclosure

TBF Financial, LLC v. Gregoire, 2015 VT 36

By Andrew Delaney

Sometimes an opinion can be a little confusing. As the SCOV notes at the get-go, “The history of these consolidated cases appealed from Washington and Caledonia Superior Courts is unusual and convoluted.” Great—the SCOV (they’re smart) says it’s “unusual and convoluted,” and I am not a smart man. You’re going to have to bear with me here.

Defendants, the Gregoires, owned four multi-family rental properties—three in Washington County and one in Caledonia County—and loans with the bank were cross-collateralized and secured by the four properties. We could get into the whole “bank”-really-means-a-couple-different-entities thing but that’d just make this more painful than it has to be. In 2010, the bank filed foreclosure complaints. Then the parties entered a forbearance agreement, which meant that the Gregoires retained control of the properties, but the tenants paid the bank directly.

Friday, February 27, 2015

Pay Your Rent, Clean Your Room

Walsh v. Cluba, 2015 VT 2

By Amy Davis

This is a straightforward landlord-tenant case with so many unnecessary twists and turns that would make for a good Pacific Heights sequel. Show of hands for those who remember Matthew Modine. Seeing no hands . . . the gist of this case is that it’s a landlord-tenant dispute, but the tenant becomes a corporation at some point, leaves the premises damaged, and gets sued for contract and tort problems. But, the lawyers have to amend the pleadings a couple of times before we know who gets sued for what. Clear as mud? Good. Here we go.

Plaintiff, landlord David Walsh, and defendant, tenant, Frank Cluba, enter into a three-year lease agreement back in 2004 where Walsh rents Cluba a commercial space on Church Street. Two months after they sign the agreement, Cluba and his business partner incorporate Good Stuff, Inc., an adult novelty shop (insert 50 Shades of Grey reference here). The lease expires in August 2007, but Good Stuff continues occupying the space and pays rent up until leaving in August 2009not an issue here because of a month-to-month provision of the lease. 

Thursday, February 19, 2015

Enough is Enough

State v. Hughes, 2014 VT 112 (mem.)

By Timothy Fair

It's not often in life that one finds themselves being given a break. When it does happen, it's usually best to thank the moon or the stars or whatever it is that works for you. The last thing anyone should do is spit in the proverbial eye of your benefactor. Especially when that benefactor is the judicial system. Our case today sorta illustrates the wisdom of that advice.

The appellant in this case was arraigned on one count of aggravated domestic assault, a felony, and one count of domestic assault, a misdemeanor, on August 25th. In Vermont, when an individual is arraigned on a criminal charge, the State has the option of requesting bail, or in more serious cases, requesting that the court hold the defendant without bail. There is statutory law which spells out precisely the grounds on which bail may be set, as well as what grounds must be met for a defendant to be held without bail. The down and dirty version goes like this: bail can be set if the court finds reasons to believe that the defendant will fail to appear at future court hearings, and that the defendant poses a substantial threat to the public. It's actually a little (or a lot) more nuanced than that, but that's the gist of it. In order to be held without bail, a defendant must find him or herself being charged with either a crime that has a maximum penalty of life in jail, or a felony-level crime involving violence to another. Additionally, there must be a determination by the court that the evidence of guilt is great and that the defendant poses a significant risk of physical violence to any person. Just how one establishes that the “evidence of guilt is great” at an arraignment is a whole 'nother subject that we'll save for a future installment.

Tuesday, February 17, 2015

Let’s Not Get Too Technical

State v. Grenier & State v. Harris, 2014 VT 121

By Christopher A. Davis

In these consolidated cases, defendants Grenier and Harris appeal the trial court’s denial of their motions to suppress breath alcohol test results obtained by the DataMaster DMT machine.

Grenier was arrested for DUI on May 22, 2010, and Harris on February 8, 2011. Defendants moved in their respective cases to suppress the evidentiary breath-alcohol tests results (the one that’s admissible in court and typically is given during processing at the station, not the inadmissible roadside one that’s used for probable cause to arrest someone), arguing that: (1) the Vermont Commissioner of Health (“Commissioner”) did not approve the DataMaster DMT machine used to obtain the evidentiary breath-alcohol results as required by statute and Vermont Department of Health (“DOH”) rules; and (2) admission of the DMT results would violate defendants’ due process rights under the U.S. and Vermont constitutions because of alleged ongoing mechanical problems with the machines and unprofessional practices by DOH employees. Defendants requested an evidentiary hearing on these arguments.

Dispute Over Sewage System Creates a Mess in Probate Proceeding

Hayes v. Town of Manchester, 2014 VT 126

By Andrew Higley

If you build it, well . . . the townsfolk will use it. In this case, a privately owned sewage system and two roads. The issue is whether the Town of Manchester is entitled to money from an Estate, in the form of a constructive trust, to inspect and maintain that sewer system. On top of that, a group of homeowners want the Estate to continue paying for maintenance of two private roads. They are arguing that certain evidence at trial was improperly excluded under the morbidly named “Dead Man’s Statute.” Sidenote: I think that would make a great title to an Edgar Allan Poe story.

What originally began as one lawsuit, the Town of Manchester (“Town”) against the Hayes Estate (“Estate”), mushroomed into different lawsuits after a group of homeowners “intervened.” This is basically a procedural mechanism that allows other parties to join in on the fun (speak now or forever lose your claim). So, there are actually two suits here: (1) the Town versus the Hayes Estate; and (2) the Homeowners versus the Hayes Estate. 

The Presence or Absence of Take-Backsies, and Related Conversations

Choiniere v. Marshall, 2014 VT 117

By Christopher A. Davis

The issue in this case is whether genuine issues of material fact exist in a long-standing contract dispute that would allow the plaintiffs’ claims to proceed beyond the summary judgment phase to trial. Lower court says no. SCOV says yes. GAME ON, LITIGANTS.

Let’s head back together to September 2003, when Paul Choiniere and P & D Consulting, Inc. loaned Andrew Button $1 million to help him purchase an automobile dealership. Button’s father and stepmother Christine Rowe-Button personally guaranteed the loan. After receiving the loan, Button the Younger began negotiating with Choiniere for an additional $1.3 million loan because I guess three automobile dealerships are better than one. During those negotiations, Button’s father passed away, and stepmother Rowe-Button did what any nurturing step-parent would do in this time of familial uncertainty…she hired a lawyer to settle her husband’s estate and attempt to cut ties with the debt guaranteed to Choiniere. After months of back-and-forth between Rowe-Button’s attorney Anthony Marshall and her stepson’s attorneys (understandably uneasy about the cessation of Button’s credit line), Marshall arranged for Rowe-Button to send out a “Termination of Guaranty” letter on April 8, 2004 (we’ll call it the “April 8 Letter”) to each of the creditors, which stated that her signature on the original guaranty “may not reflect my actual signature thereon,” and also set out in ALL CAPS that any guaranties provided or purportedly executed and provided (if that IS your real name!) by any entity owned by the elder Buttons were thereby terminated.