Thursday, July 24, 2014


In re Allen, 2014 VT 53

By Jeffrey Messina

WARNING: This SCOV Law summary contains graphic material that may not be suitable for all audiences. Parental guidance is suggested . . . .

This case involves allegations of a pretty horrible act on a child, and how much discretion a trial court has to consider facts not in evidence when determine sentencing.

Petitioner appeals a summary judgment ruling in his quest for post-conviction relief (“PCR”) on the basis that the court applied improper legal standards in reaching its decision on his claim of ineffective assistance of counsel.

Wednesday, July 23, 2014

Reviewing the unreviewable . . .

In re Roy Girouard, 2014 VT 75

By Jeffrey M. Messina

Petitioner appeals the superior court's denial of motion to reopen his post-conviction-relief (“PCR”) petition and order the Department of Corrections (“DOC”) to release him on furlough.

In the mid-seventies, petitioner was convicted of first-degree murder and sentenced without a minimum term. At the time, eligibility for furlough was not conditional on the completion of a minimum prison term. However, in 2001 the Legislature amended the governing statute to condition eligibility for conditional re-entry furlough on the completion of a minimum term.

Petitioner filed an action against the DOC in 2007 alleging its refusal to consider him furlough eligible because he lacked a minimum sentence violated the Ex Post Facto Clause of the US Constitution. The superior court dismissed the claim determining the amended statute did not violate the clause because it did not increase the penalty for the crime. 

Tuesday, July 22, 2014

The Leave-Behinds

JW, LLC v. Ayer, 2014 VT 71

By Elizabeth Kruska

With the parties named Bryan and Debbie, it took everything I had not to write this summary to the tune of “Scenes From An Italian Restaurant” since the names “Bryan and Debbie” make me think of “Brenda and Eddie.” If anyone wants to write a verse or two, leave it in the comments and maybe we can make a song. It might be the first-ever song parody written about landlord-tenant law.

Bryan and Debbie rented a home from JW, starting in 2005. It was relatively new and in great condition when they moved in. They lived there until 2012 with their kids, dogs, chickens, and all their personal property. They didn’t pay rent in March and April 2012. They did pay their May 2012 rent, plus $300 in arrears on their back rent.

JW, the landlord, filed for eviction in July. The court issued a rent escrow order. That’s when, during an eviction, tenants can continue to pay their rent, but they pay it into the court while the case is pending instead of paying the landlord. Bryan and Debbie paid part of their August rent, but not all of it. The opinion isn’t totally clear, but it appears they did not pay June or July’s rent.

Who’s Your (Well, Anybody’s) Daddy?

Moreau v. Sylvester, 2014 VT 31

By Elizabeth Kruska

At first blush, the facts of this case seem simple.

Christopher Moreau and Noel Sylvester dated over several years. Noel has 2 kids. Christopher wasn’t their dad, but for 8-10 years, was a pretty significant parent-figure in their lives. I think we can assume that he and the kids formed a relationship based on the time they spent together.

Unfortunately, as things sometimes do, the relationship fell apart. Noel moved on and started dating someone new. Christopher sent her text messages suggesting he would find her and the kids. He tracked down Noel’s new boyfriend at work, and then went to Noel’s house and knocked on her door in the middle of the night. The next night he did the same thing with a friend, and they both banged on Noel’s door until the police came.

Based on this behavior, Noel decided to get a relief from abuse (RFA) order, which was granted relative to both she and the kids. This happened in Caledonia County. Christopher appeals this.

Sunday, July 20, 2014

Combination Conundrum

In re B.A., 2014 VT 76

By Andrew Delaney

B.A. was referred to a special school when she was 13 or so. There were concerns from the get-go about hygiene and self-injury. There was also an incident in which B.A.’s brother was allegedly sexually assaulted by B.A.’s friend, while B.A. was present and mom was in another room at their house. Then B.A. showed up to school drunk. The Department of Children and Families (DCF) got more involved, and a child-in-need-of-care-or-supervision (CHINS) proceeding as well as a juvenile delinquency proceeding were started.

The trial court essentially combined the two proceedings, and mom waived her right to counsel. B.A. admitted the delinquency, but mom opposed the disposition on the delinquency (which recommended continued DCF custody), and the merits on the CHINS allegation. There was a two-day hearing, and evidence was introduced about the living conditions at mom’s house, B.A.’s behavioral issues, and the alleged sexual assault. 

Two for the Price of One?

Hoiska v. Town of East Montpelier, 2014 VT 80

By Andrew Delaney

In this case, “two for one” is not so much a deal as it’s a potential penalty. The SCOV holds that an unrecorded survey with a supposed dividing line through it doesn’t legally break your property up into two lots. Dates become important in this case though.

Taxpayer has owned a 16.2-acre lot since 1977. In 1977-78, taxpayer had a survey done, which may or may not have included a line subdividing the parcel into two lots. From 1974-82, the town only required subdivision approval for a three-or-more-lot division. After 1982, approval was required for two-or-more—in other words, any—division. Now, in 1986, taxpayer recorded the 1977-78 survey. She never applied for nor received subdivision approval. Almost 15 years passed. 

Monday, July 14, 2014

Crisis Averted

O’Connor v. O’Connor, 2013 VT 110 (mem.)

By Andrew Delaney

This is not a complicated case.  All it takes is a letter . . .  

Parents were divorced in 2011. They shared parental rights and responsibilities for their two boys pursuant to an agreement, and the boys lived primarily with mom. Dad got to claim the older boy as a dependent on his taxes, while mom got to claim the younger. Once the older boy turned 18, the parties agreed to alternate claiming the younger.

Just over a year later, the boys switched to living with dad, and the trial court entered an order modifying physical rights and responsibilities. The court issued an order modifying child support and spousal maintenance, but did not address dad’s request that he be allowed to claim both boys on his taxes.


Playing by the (Administrative) Rules

Luck Brothers, Inc. v. Agency of Transportation, 2013 VT 249

By Hannah Smith

In this case, what began with a simple contract dispute quickly evolved into a relatively complicated exploration of the administrative dispute-resolution process.

Plaintiff Luck Brothers, Inc., a construction company, bid on and was awarded a contract by the Vermont Agency of Transportation to rebuild a section of Main Street in Barre City, Vermont. The project commenced in 2011, expenses mounted (as they are wont to do), and soon plaintiff’s expenses exceeded the bid amount. Plaintiff filed a claim against the Agency for additional compensation, alleging differing site conditions from those assumed in the original contract. All very straightforward. The fun began when plaintiff attempted to skirt the Agency’s administrative review process by filing the claim in Superior Court instead of seeking a determination through the mandatory dispute resolution process. Luck Brothers sought from the court both compensation, and a declaratory ruling that it had no obligation to exhaust its administrative remedies through the Agency’s administrative-review process because that process failed to comply with the requirements of due process.

Summer Camp Blues

Brownington Center Church v. Town of Irasburg, 2013 VT 99

By Hannah Smith

A recent ruling by the SCOV proves again the old adage that nothing is certain but death and taxes. According to the Court, not even godliness guarantees you a property-tax break under the stern, secular eye of the law.

Quite simply, this case concerns a dispute over the tax-exempt status of a Christian summer camp, and whether the camp property qualifies for the “pious-use” real estate tax exemption. The Court held that it does not because church camps are not among the specifically identified types and uses of property eligible for the exemption under the statute.

Stepparent Standards Split

LeBlanc v. LeBlanc, 2014 VT 65

By Andrew Delaney

The parties to this case were married approximately a dozen years. During a separation early on in the marriage, mom got pregnant by another man. Dad attended the birth. The parties later got back together, and dad’s been there since his stepson was a year old. Later on, the parties had four more kids together.

Mom filed for divorce, and after a multi-day trial, the trial court granted the parties a divorce, set forth a visitation schedule, and awarded primary parental rights and responsibilities (except for medical decisions) to dad for all five children, including his stepson. Mom appealed arguing that: (1) the statutory requirements for divorce weren’t met; (2) the trial court erred when it awarded primary rights and responsibilities for her son (dad’s stepson) to dad; and (3) the trial court abused its discretion in setting the visitation schedule.

The SCOV majority says the trial court messed up when it awarded primary rights and responsibilities for the stepson to dad without a finding that mom was an unfit parent, but affirms everything else. Let’s take a look at the facts, shall we?