Sunday, August 31, 2014

Thanks for Nothin'!

Ainsworth v. Chandler, 2014 VT 107

By Andrew Delaney

In the usual course, a defendant is thrilled when his insurer steps in and gets the case against him tossed on summary judgment. This case is different.

Boyfriend and girlfriend met up at the office for boyfriend’s electrical business. When they went to leave, girlfriend allegedly tripped over a coil of wire left by the stairway and was injured. Sometime later, boyfriend sued his insurer for bad faith, and insurer counterclaimed for noncoverage. Then girlfriend filed suit against boyfriend while the other suit was pending. The trial court granted summary judgment to boyfriend and dismissed the girlfriend-boyfriend personal-injury suit, finding that girlfriend was a licensee and not a business invitee, and thus, defendant didn’t breach any duty of care. Because the underlying personal-injury claim was dismissed, the trial court also ruled in favor of insurer in the other case, concluding no coverage was owed.

Let’s play Can You Spot the Error? Here’s a hint.

Saturday, August 30, 2014

Technical Tolling Trouble

Mahoney v. Tara, LLC, 2014 VT 90

By Andrew Delaney

As Yogi Berra is rumored to have said, this case is “like déjà vu all over again.”

Back in 2011, the SCOV sent this case back to the trial court for factual development. Plaintiffs’ family had been renting a lakeside property since 1949 and bought it in 1979. From 1958 until 2006 Vermont Catholic Charities (VCC) owned the adjacent lot. In 2006 defendant Tara LLC bought the VCC lot. When Tara decided to subdivide its lot, it included a survey that purported to cut plaintiffs’ beach in half.

Plaintiffs filed to quiet title in late 2007, arguing that they had adversely possessed the at-issue land, and defendant moved to dismiss in early 2008, arguing that the statutory-based charitable-use exemption to adverse possession applied while VCC owned the property, so plaintiffs couldn’t adversely possess the property. The trial court granted the motion and plaintiffs appealed. You know how that story ends.

Appreciation for Depreciation

Vermont Transco LLC v. Town of Vernon, 2014 VT 93

By Andrew Delaney

I’ve never developed a taste for property tax law. But this case seems like it might’ve been interesting to litigate. The actual real property involved is worth but a very small percentage of the total assessment. This is almost all about the equipment and lines.

Taxpayer owns “five electrical substations, seven transmission lines, a fiber-optic line, land, and utility easements located within the Town of Vernon.” The town listers valued the property at $92 million and change. Taxpayer appealed to the Board of Civil Authority, which upheld the valuation. Taxpayer then appealed to the state appraiser. 

A Scrap over Scrap

In re All Metals Recycling, Inc., 2014 VT 101

By Andrew Delaney

My favorite land-use acronym, which one of our writers noted some time ago, is BANANA-NIMBY: “Build Absolutely Nothing Anywhere Near Anything, and most certainly Not In My Back Yard.” I don’t know its specific origin, but I think it’s funny.

This particular land-use kerfuffle arises from the environmental division’s “grant of a discretionary permit to All Metals Recycling, Inc., to establish an outdoor storage area and install a scale and scale house.” In essence, this permit allowed All Metals to keep on doin’ what it was doin’—it had already built the scale and scale house that the permit authorized. There’s also a dispute over a proposed parking plan thrown in for good measure.

Friday, August 29, 2014

Once, Twice, Three Times a Prosecution

State v. Porter, 2014 VT 89

By Merrill Bent

This case demonstrates just how the intricacies of the Rules of Evidence can trip up experienced litigators and trial court judges alike, yielding an inelegant and clumsy dance through the courts and, at times, a seemingly inefficient path towards justice.

The facts underlying this case involve a harrowing attempted kidnapping in which the victim was attacked by an unknown assailant, who physically assaulted her and tried unsuccessfully to force her into his pickup truck before fleeing the scene. Several eyewitnesses observed the attempted kidnapping, and one was able to offer a somewhat-vague description of the assailant and confirm that the truck had Vermont license plates.

Total Recall. Or not.

State v. Spaulding, 2014 VT 91

By Elizabeth Kruska

When I was in fourth grade my teacher made everyone in the class write in journals for fifteen minutes every day after lunch. I suspect it was so she could build a little peace and quiet into the day as much as it was so we could practice writing. I recently found my journal, and want to share this entry:
Today after science David told me he likes shrimp. So I told him I like shrimp. Then he said, “sit by ya at lunch” so I said “ok.” Then Jessica got mad because I told her yesterday I would sit by her. Jessica sat by Sherry and now they are both mad at me because Sherry doesn’t like David.
What a gem. 

Monday, August 25, 2014

The Return of the Long-Arm

Fox v. Fox2014 VT 100

By Elizabeth Kruska

I love a good long-arm statute. I might need to find a new hobby.

Neal Fox is Eugene Fox’s uncle.

“Plaintiff Neal Fox’s brother adopted Eugene Fox when Defendant was an infant.” This might be factually accurate but it confused the heck out of me. I thought the sentence was about 4 different people. Then I drew a diagram and figured outyep, Neal is Eugene’s uncle. The fact Eugene was adopted as an infant seems a little like how in The Royal Tenenbaums, Gene Hackman’s character always referred to Gwenyth Paltrow’s character as “my adopted daughter.” 

Sunday, August 24, 2014

Cursory Colloquy Can't Cut It

In re Manosh, 2014 VT 95

By Andrew Delaney

Who really knows how these cases are going to end up? Just recently, the SCOV issued a 3-2 decision that seemed to imply that “substantial compliance” with the Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) was good enough.

Not so in this case. Back in the early ‘90s, Mr. Manosh pled no contest to a first-offense DUI. He signed a waiver form that for our purposes here, essentially complies with the Rule 11 requirements. The trial court asked him if he knew what had been said and what was in the documents. He said yes. When the court asked if he had any other questions he said no. That was about the size of it—the court didn’t get into the burden-of-proof thing, the right-to-a-jury-trial thing, or much else. It was basically “Got it? Any questions?”

The Enigmatic Body Shop

State v. Morse, 2014 VT 84

By Ember Tilton

Phillip Morse had a bad daya very, very bad day. For whatever reason, he decided to chase his ex-girlfriend with his truck, pass her and try to block the road. As if that wasn't enough, he then hit her car as she tried to get around him causing damage to her mother's green car.

Now comes the State of Vermont charging Mr. Morse with aggravated domestic assault, aggravated stalking, negligent operation of a vehicle and reckless endangermentall contrary to the peace and dignity of the State. Mr. Morse pled guilty in exchange for some lenience. He pled to grossly negligent operation and reckless endangerment, for dismissal of the other charges. 

Discretion and Disposition

In re C.L. & S.L.2014 VT 87 (mem.)

By Andrew Delaney

Parents and kids generally have a hard time of it once they’re in the court system and there are allegations of neglect. It’s a bit of a murky system.

Mom has a history with the Department for Children and Families (DCF). Her elder son was placed in another home under a guardianship due to medical neglect. Last year, “DCF filed a CHINS petition alleging parental neglect of” two younger children—who were ten and three at the time of the petition.

There was a preliminary hearing and though DCF requested custody and the court expressed “serious concern about the children’s developmental delays,” in the end the court ordered conditional custody to mom with “stringent conditions”—meaning that the parents had to jump through a lot of putatively therapeutic hoops and make sure the kids did the same.