Sunday, November 29, 2015

Blurred Lines

In re Bove Demolition/Construction Application, 2015 VT 123

By Andrew Delaney

The Boves (father and son, I’m guessing from “Richard J. Bove, Sr.” and “Rick Bove”) own adjoining lots in Burlington and want to put a development on the combined lot. So what’s the problem?

Well, a zoning-district-boundary line runs right through the middle of things, and there’s supposed to be a fifteen-foot buffer between the zoning districts. The Boves applied for a permit to the Burlington development review board (DRB), which denied the application. The Boves appealed to the Superior Court, Environmental Division, which found that the merger of the lots eliminated the property line, but didn’t get rid of the zoning-district-boundary line.

As mentioned, the Boves own two adjoining parcels. One is fully within the downtown-transition district; one is fully within the residential-high-density district. This means that the zoning-district-boundary line is the same as the property line between the two parcels. The Boves propose to merge the parcels, eliminate the property line, demolish several existing buildings, and put in a single twenty-three-residential-units-and-one-commercial-unit development. There would be an edge of a building within the fifteen-foot-buffer zone.

Saturday, November 28, 2015

Messing with Future Plans

In re Petition of VTel Wireless Inc., 2015 VT 135

By Andrew Delaney

What do you do when someone else’s plans are going to mess with your plans? Is the future impact on your plans enough to put you in a position to stop the other’s plans? Of course "it depends." I hope you weren't expecting a straight answer.

Back in May 2014, VTel Wireless sent a statutorily required prefiling notice that it intended to seek a certificate of public good (CPG) for a planned telecommunication project in Bennington. The notice was sent to various agencies and all adjoining landowners. The idea was to bring high-speed wireless internet to unserved and underserved homes and businesses in the area. The proposed project consisted of a 90-foot cell tower (with attached antennas), a storage container on a concrete pad, and underground power lines.

Various illustrative aids and documentation were attached, which VTel claimed showed that the project would have a minimal aesthetic impact, and was compliant with town and regional plans and FCC regs.

Friday, November 27, 2015

A Divorce to be Reckoned With

Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129

By Ember S. Tilton

Divorces are not fun.

But like many things, they can get worse. Mr. Felis sued his ex-wife's lawyers and an appraisal company after his divorce. Mr. Felis claimed that they racked up unnecessary bills and dragged things on just to take more of his money. There're so many lawyer jokes here, but I'm going to try to show some restraint.

The trial court in the divorce found the in-excess-of-one-million-dollars-in-fees incurred unreasonable, but still awarded some money from the marital estate to pay Mrs. Felis's legal fees and expenses for the appraisal work Gallagher Flynn & Company (GFC) did. Mr. Felis also claimed that Downs Rachlin Martin (DRM) submitted false sworn statements to the court to show Mrs. Felis's debt. Mr. Felis filed suit against DRM.

DRM filed a motion to dismiss. It asked the court to throw out the lawsuit because it was positively ridiculous. GFC went one step further and asked the court to "strike" portions of it pursuant to a Vermont law designed to protect people from vexatious litigation. This would involve removing certain allegations from the record. The trial court granted the motions to dismiss filed by both defendants but denied the motion to strike.

Boathouse Blowback

LeBlanc v. Snelgrove, 2015 VT 112

By Andrew Delaney

I’ve always thought that lakefront property is really nice. But from what I can gather from this case, it can be a giant pain in the arse.

Here’s the skinny on this little slice of heaven on Lake Memphremagog. Mr. LeBlanc (Dad or occupant) and his three kids are the neighbors and the plaintiffs. Mr. Snelgrove is the landowner and the defendant. At least that’s how the SCOV sets it up. I’m too lazy to reinvent the wheel here.

At any rate, there are these two closely related disputes. First, there’s Mr. Snelgrove’s replacement of his boathouse and construction of retaining walls that encroached on the neighbors’ property. There’re injunctions and trespass damages going on there. Second, there’s Dad’s vandalism of the disputed boathouse. 

Monday, November 23, 2015

Burden Shifting Tennis

Gauthier v. Keurig Green Mountain, Inc.2015 VT 108

By Elizabeth Kruska

I had completely forgotten about the three-part burden-shifting test from McDonnell Douglas v. Green until I read this opinion. Then I distinctly remembered being in first year constitutional law as a law student and reading the case. For those who went to Vermont Law School before the 2003ish renovation, you’ll recall that the Old Classroom Building, or OCB, as it was often called, had sort of a distinct musty smell. My con law class was in that building, and immediately memories of that musty smell came flooding back to my brain. It was a very Marcel Proust-type moment for me right there, except for a distinct lack of tea and madeleines.

In any case, McDonnell Douglas set forth a three-part test to be applied when a person alleges that an employment action was taken against him or her for discriminatory reasons. It goes like this: first, the employee has to make a prima facie case showing that there was a retaliatory action. Second, the burden shifts to the employer to show that there was a legitimate, non-discriminatory reason for the action. Third, the burden shifts back to the employee to show that actually that proffered non-discriminatory reason was actually just a mere pretext. It plays out like a tennis match of burden shifting.

Mr. Gauthier worked for Keurig Green Mountain, which used to be known simply as “Green Mountain.” Whether the company’s name will next be changed into an unpronounceable glyph or a reference to World Peace remains to be seen. Anyway, he worked for the coffee people in Waterbury doing maintenance on overnight shifts starting in May of 2007. He didn’t have his own computer for work, but he did have access to a computer and had a login name and password. According to Mr. Gauthier, sometimes he’d log in and then have to go do something, and when he’d return, would find his settings—including his desktop background picture—had changed. My desktop photo right now is one I took of American Pharoah; I’d be annoyed if someone came in and changed it to something else, but then I’d probably just change it back. I would know that someone did something to my computer while I wasn’t there. Along the lines of I think what Mr. Gauthier was trying to say, it would show that someone else was accessing his account.

Sunday, November 22, 2015

Termination Confusion

In re R.B., 2015 VT 100

By Elizabeth Kruska

I’ve spent the last couple years doing, among other things, lots of juvenile court cases. I’ve come to a few conclusions. First, juvenile cases are really hard; everybody really wants what’s best for kids. Getting to what’s best isn’t always easy, though. Second, the juvenile statutes are really complicated, which sometimes doesn’t reveal itself until a case is waist-deep in litigation and suddenly nobody knows what part of the statute applies (this happens more than you’d think). Third, because the proceedings are confidential and purely created by statute, it’s hard to understand context for opinions like the one in R.B.

Here’s the situation. Mom and Dad had three kids: R.B., O.B., and K.C. These kids are little, like under 8. It appears that R.B. might have had a different dad than the other two kids. Families can be a little complicated. Anyway, Mom and Dad apparently were on the radar of child services in Tennessee, where they lived in 2010. Then they moved to Vermont. In August of 2012, DCF filed a petition alleging the kids were in need of supervision (CHINS), and the parents stipulated to some facts to support that petition. Initially the kids were placed with their paternal grandmother, but were later placed with father’s cousin Kristin with a conditional custody order.

Here’s where stuff starts to get complicated. A conditional custody order (CCO) is an order from the court transferring custody from parents to someone else, but with conditions that must be fulfilled. It doesn’t remove or terminate a parent’s rights to the kids. Also, the kids are not in the custody of DCF. If kids are in DCF custody, DCF controls everything, including where kids are placed. It’s very possible that DCF could place kids with relatives – they do that all the time, and it’s generally how they like to do it. But it isn’t required, and sometimes there aren’t suitable relatives available to take kids for whatever reason. That’s how kids end up in foster homes. When there’s a CCO, DCF still has the ability to monitor the situation, but they don’t have custody. If something goes wrong in the CCO household, DCF has to take the situation back to court to have the judge issue a different order.

Saturday, November 21, 2015

Who's the Boss?

State v. Trowell, 2015 VT 96

By Andrew Delaney

The State certainly seems to think Mr. Trowell was in charge.

Mr. Trowell was convicted of one count of assault and robbery and one count of kidnapping. He argues that the trial court screwed up when it determined that he’d “opened the door” to certain cross-examination of a defense witness; that the trial court should’ve given his requested jury instructions; and that the trial court should’ve granted his motion for judgment of acquittal on the kidnapping charge.

Let’s look at how this all came about.

Mr. Trowell and his friend, Mr. Manning, encountered Ms. Moses at a grocery store. Mr. Trowell and Ms. Moses had met in the past. They quickly exchanged friendly greetings. Ms. Moses then went to the bus station to meet her fiancée, Ms. Tirrell.

Friday, November 20, 2015

Menacing Mortgages and Marital Distress: A Bona Fide Mismatch

EverBank v. Marini2015 VT 131

By Thomas M. Kester

If someone makes you an offer “you can't refuse,” you probably should take it unless you want something bad to happen (what ever happened to that Jimmy Hoffa guy by the way?). While most people have distress about their mortgages, they enter into them because houses are wicked expensive and it's not like houses grow on trees—well, not entirely at least. 

Anyway, it’s one thing to sweat about your mortgage payments every month and another to make someone sweat about entering into a mortgage. The law doesn’t like it when one party uses high-pressure tactics on the other party when contracting (however, it brings in the ratings for The Bachelor, like when Chris ultimately chose Whitney over Becca—or so I’ve heard from a friend). However, duress can be raised as an affirmative defense to the enforcement of a contract if one party was coerced into contracting (kind of like annulling a “shotgun marriage” over the “shotgun” aspect).

In this case, Caroline (wife) was not interested in refinancing their home while Gary (husband) was all about it. Caroline believed it is was “financially unhealthy” and refused to sign any documents to that effect. Gary told Caroline that “he would mortgage the family home ‘whether [she] liked it or not,’ and regardless of whether she agreed,” and started the paperwork with LendingTree Loans in mid-March 2009. Caroline contacted LendingTree Loans and told them “she did not want the loan, that she and [Gary] were in marital counseling, and that the mortgage was ‘a very bad thing for [them].’” The loan officer advised Caroline not to sign anything but that the loan officer couldn’t do anything to stop Gary’s loan application.

On April 3, 2009, Gary arranged for a notary to witness her signature and Caroline subsequently called LendingTree Loans on April 5 and told them she wasn’t going to sign anything. The notary did not come to the house on April 5. So Gary learned of Caroline’s action via an email from LendingTree Loans, “became “extremely angry,’” and “berated [Caroline], repeatedly stating that she was not a competent adult, that the children [who were present for this exchange] were no longer to consider her an adult, and that he was going to divorce her.” He then “removed a pair of large scissors from the knife drawer and waved them back and forth while repeating that [Caroline] was incompetent.” Being “frightened for her and her children’s physical safety” Caroline agreed to sign the necessary documents “if he would leave the children alone.”

When the LendingTree notary came to the home, they “asked Caroline if her signature was her free act and deed, she replied, ‘it is what it is.’” I felt the same way when I signed my student loan paperwork, but for different reasons (the silver lining is that I learned a little bit about how bankruptcy works if the need ever arises). Concurrently, Gary executed a note to LendingTree Loans for a principal of $311,200.00. A little snafu—“Although Caroline signed the mortgage paperwork, she did not sign the note,” and that mortgage listed both Gary and Caroline “as ‘borrowers’ and LendingTree as the ‘lender.’” 

Thereafter, LendingTree assigned the rights to both the mortgage and loan to Bank of America (BoA). Caroline, upon learning this, complained about the coercion to BoA but the person she spoke with stated “that only [Gary] was listed on the loan documents and therefore the representative could not talk to [Caroline] about it.” Around April/May 2011, the couple stopped making monthly payments and BoA initiated the foreclosure action in the Addison Superior Court.

Caroline filed an answer and asserted the affirmative defense of duress, stating that “she had ‘signed the Mortgage Deed under duress, namely, implicit threat by [Gary] of physical harm with a sharp object in the presence of her children’” and “arising from her ‘desire to protect her children from further exposure to parental disagreement, to protect herself from further humiliation, and continuing verbal pressure to burden the house with further debt.’” She also counterclaimed. BoA moved for summary judgment against Caroline and judgment for foreclosure but did not address any of Caroline’s affirmative defenses or contentions. Caroline filed a motion in opposition and cross-moved for summary judgment based on her unopposed defense of duress. BoA also moved to substitute EverBank as a party, to both the mortgage and note.

Trial-time: the BoA counsel did not address Caroline’s contentions but stated that the couple had missed payment and were in default. Caroline’s counsel stated that Caroline was coerced into signing the mortgage and, at least to her, the mortgage was void. Of note, “both [Caroline’s counsel and the trial court] noted that neither Gary nor Bank of America had disputed Caroline’s version of the facts or responded to her cross motion for summary judgment.” The trial court judge questioned Gary and asked, “so you forced her to sign it?” to which Gary responded, “I guess I did from that standpoint because I was very angry. I didn’t physical[ly] put her hand on the paper, but I was very angry.”

After allowing BoA to respond to Caroline’s asserted defenses, the trial court granted Caroline’s motion for summary judgment and allowed the substitution of EverBank. The trial court went further and stated “‘the outcome in this case would not change even if the Court were to conclude that [Caroline’s] coerced signature on the Mortgage Deed rendered the Mortgage only voidable,’” citing that Caroline had not ratified the mortgage and EverBank was not a bona fide purchaser as to preclude a duress defense. After fishing out my legal dictionary (which currently doubles as a monitor stand), “bona fide purchaser” is one who “acquires apparent title in property in good faith for valuable consideration and without notice of a third person’s claim.” The trial court also denied EverBank’s motion to alter or amend the judgment based on “unjust enrichment” (you get the benefits of something without paying for it and, in the eyes of equity, you should pay) based on them not raising it at trial.

EverBank appeals.

First issue: whether the mortgage was void as to Caroline as a matter of law. 

Before getting to the answer the SCOV needs to examine the affirmative defense of “duress.” Under contract law, “duress, operates to undermine a party’s manifestation of assent and thus undermines one of the foundational cores of any agreement,” to the extent that the parties don’t have a “meeting of the minds” or mutual assent to contract. 

Allow me to present a scenario to better illustrate this point: I walk into a barbershop, sit down on the chair, and say to the barber “take ½ inch off the top.” The barber says “that will cost $12.00” and I say “sounds good.” The barber nods his head and proceeds to cut my hair. We both mutually agreed to contract: him to cut my hair ½ inch off the top for $12.00 and me to provide consideration ($12.00) for his services (cutting ½ inch off the top).

There is another caveat that we have to address as well: the difference between “void” and “voidable” contracts. Under the affirmative defense of duress, a contract may be ratified if it is voidable but not if it is void. Now the parties agree that duress caused by physical compulsion renders a contract void. The distinction is important because transferring title to property (i.e., BoA's transfer to EverBank) may not be “good title” if the alleged good-faith purchaser (EverBank) purchases the property from one who obtained void title by duress but it can still be good title if it is a voidable title.

EverBank “contends that only where one person physically compels another to give apparent consent, such as by manually forcing the victim to sign a document” renders an agreement void—but only that scenario. Caroline argues that physical compulsion encompasses “the threat of application of immediate physical force sufficient to place a person in the position of the signer in actual, reasonable, and imminent fear of death, serious personal injury, or actual imprisonment,” and that scissors being waved around are enough to cause this contract to be void.

The SCOV reasons this is a case of first impression, and looks to the Restatement on Contracts (2nd Ed.) (which is written by wicked smart legal people at the American Law Institute and is the go-to source when you need to create law/understand contracts). 

There are two types of duress—physical compulsion and improper threat. The former is when I grab your hand and make you write your name on a contract; the latter is when I threaten you if you don’t sign and you sign the contract based on my threat. Furthermore, there is a test that can be used for improper threat: (1) whether there is an improper threat and (2) whether the victim has no reasonable alternative but to do as they are told. The threat is improper is a crime or tort (i.e., “I will beat you if you don’t sign”). Threatening someone with “the Red Sox will not win another World Series if you don’t sign this paper” probably won't make the cut (go Sox). 

The question of whether the victim has a reasonable alternative “a practical one under which the exigencies in which the victim finds” themselves is examined. So armed with this legal knowhow, the SCOV must still examine the factual situation to see which duress is present. Looking at some other cases from other jurisdictions, the SCOV concludes that a contract is deemed void when the duress is not only physical compulsion (e.g., grabbing the hand) but “threat of immediate application of physical force sufficient to place a person in the position of the signer in actual, reasonable, and imminent fear of death or serious personal injury.” 

Applying the law to the facts, the SCOV finds that the record doesn’t show “that Gary overpowered Caroline and manually manipulated her hand to appear to assent” or that there was a “threat of imminent physical violence upon Caroline such that she reasonably feared loss of life or serious physical injury at the time she signed the document, which was the day following the incident with the scissors.” 

Although the SCOV sees the scissor waiving event as a “tense situation” it “was removed in time and context” when Caroline signed the document the next day. Further, Caroline had a reasonable alternative as there was no indication “in the record at all that the threat was so persistent that it continued through that time nor is there any indication at all that Caroline was without ability to exfiltrate herself from Gary’s control.” The SCOV remands the issue to the trial court to determine whether the contract is voidable to Caroline. The SCOV also kicks back the issue of ratification and whether ratification can trump Caroline’s claim of duress.

As to whether or not EverBank is a “bona fide purchaser,” the SCOV concludes that EverBank’s acquisition of the mortgage seven months after Caroline raised duress cannot allow it to be a bona fide purchaser “when it had constructive, if not actual, notice of this defect.” This is because a bona fide purchaser takes “without notice of defects” and there is a potential defect here—Caroline’s duress claim. The Court remands to the trial court to [re]determine whether Caroline’s duress claim has merit.

Thursday, November 12, 2015

Criminal Conditions

State v. Putnam, 2015 VT 113

By Amy Davis

On a beautiful spring day in 2013, Defendant’s neighbor was driving along the dirt road to his house at a leisurely 10 m.p.h. with the music turned up and the windows rolled down—the perfect start to a country song. Just then, Defendant raced up behind him faster than Kyle Busch, pulled ahead of him, slammed on his brakes, and skidded down the road. Defendant got out of the car, yelling for the neighbor to turn down his music. For this, Defendant was charged with and convicted of grossly negligent operation and disorderly conduct.

Defendant appeals the court’s denial of his motion for judgment of acquittal. Defendant contends that the State needed to show that he “exercised no care due to others in a situation where there is great potential for immediate danger” and the State failed to do that. Under the applicable statute, gross negligence is a “gross deviation from the care that a reasonable person would have exercised in that situation.” Sometimes it’s hard to tell the difference between negligent operation and gross negligent operation, but even mere inattention can suffice for grossly negligent.

In this case, the court instructed the jury that the State needed to show that Defendant “disregarded a risk of injury or death” and the State rose to that challenge. If you pass on a narrow road, then turn your car sideways in said road causing another car to slam on its brakes to avoid hitting you, that’s gross negligence—so don’t do that. Defendant says, "Well I didn’t run him off the road or drive him into oncoming traffic, so it’s not that bad."  The SCOV says it is still bad and upholds the denial of Defendant’s motion for judgment of acquittal.

Wednesday, November 11, 2015

Striking Out

State v. Fucci, 2015 VT 39

By Timothy Fair

In honor of my hometown team making it to the World Series, this installment of SCOV Law is dedicated to our favorite perpetual underdogs, the N.Y. Mets

Today’s case involves a rather familiar issue for the Court: the validity of a plea agreement. The story begins with Mr. Fucci being involved in a civil lawsuit, but then takes a rather Grisham-esque turn. While the details of the original civil litigation are not available, one can assume that Mr. Fucci was not doing so well based on the allegation that at some point in the proceedings he decided to try and hire a hitman to take out a witness for the other side. 

Not the smartest play, because as it turns out, the hitman who Mr. Fucci attempted to hire was actually a confidential informant working for law enforcement. Next thing you know, Mr. Fuccifound himself behind in the count, charged with attempted first-degree murder and inciting to felony. The State eventually amended the charges, and Mr. Fucci eventually found himself facing two counts of inciting to felony and one count of obstruction of justice. On March 15, 2013, as part of a negotiated plea deal, Mr. Fucci pled guilty to one count of obstruction of justice and was sentenced to 10-15 years imprisonment. This appeal follows.