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. 

Saturday, August 23, 2014

Testamentary Trust Tussle

Curran v. Building Fund of the United Church of Christ of Ludlow, 2013 VT 118

By Andrew Delaney

Phyllis Agan lived with her husband in Ludlow for over sixty years. They were active community members. When he died, she put her assets into a trust. Over the years, she amended the trust, including several amendments approximately two-and-a-half years before she died. In the end, she left a boatload of money to local nonprofits, and some assets to her relatives. Some of her relatives—a sister and the sister’s two kids—were not too excited about the distribution of over eight-million dollars because it seems the bulk of it went to local nonprofit organizations.

So they sued. They argued that she lacked capacity and that her guardian exerted undue influence over her. Relatives and others who dealt with her during the relevant time “observed personality changes and signs of confusion.” Her primary care physician diagnosed her with dementia when she was in the midst of the various changes to the trust. About a year before the final changes, she recruited her longtime neighbor and friend to help her with her bills. About six months later, she contacted an attorney because she wanted to make a number of changes to the trust.

How I Learned to Stop Worrying and Imply Compliance

In re Hemingway, 2014 VT 42

By Christopher A. Davis

The Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) routinely gives hope to defendants and ulcers to attorneys, and in this case inspires a 3-2 decision by the SCOV and a passionate debate about what constitutes compliance with the requirements of the rule.

Petitioner (aka defendant) entered into a plea agreement with the State whereby he pled guilty to one felony charge of aggravated assault and five violations of conditions of release in exchange for the dismissal of a litany of other offenses. The trial court explained the rights petitioner would give up by entering the agreement, the sentencing consequences, and petitioner admitted a factual basis for the plea. The court did not inquire of petitioner whether his plea was coerced or induced by promises outside of the plea agreement, but did state that it would find his plea to be knowing and voluntary and gave him an opportunity to speak before entering said plea, which petitioner declined.

Sunday, August 17, 2014

Insurance Irritation

Murphy v. Patriot Insurance Company, 2014 VT 96

By Andrew Delaney

I’ve dealt with a lot of insurance companies and adjusters. Some are great; some are not so great; some are in between. Plaintiff had some issues with hers. But are those issues actionable? Stay tuned.

Plaintiff reported storm damage to flashing on her roof that caused water leakage, and insurer sent out a private claims adjuster four days after the report. Though there was dampness in several areas, the adjuster reasoned there was no apparent damage to the roof. Insurer paid plaintiff a few grand for wind and water damage.

Plaintiff then filed an additional claim after a worker found rot damage from water infiltration around the front chimney. The adjuster returned and insurer initially paid plaintiff a few hundred dollars more after subtracting a deductible. Though the adjuster concluded that the damage was from the same storm, insurer initially disagreed, based in part on plaintiff not having discovered a ceiling stain until two months after the storm. Two months later, however, insurer refunded the deductible and paid plaintiff the policy limit for rot and mold damage, based in part on an independent building inspector’s report.

Thoughts on Torts, Threats, and Thuggery

Baptie v. Bruno, 2013 VT 117

By Andrew Delaney

This case helps define how much responsibility a police officer has to protect a specific person when a complaint is made about a potential attacker.

Plaintiffs are the administrators of their son’s estate. Four days after they made a complaint to the police about defendant Bruno, he murdered their son. See, Mr. Bruno thought Mr. Baptie owed him some money. So he called Mr. Baptie’s parents’ house and left threatening messages, including death threats.

So they called the police. Dad had had some run-ins with the local police and was not particularly pleased when defendant Officer McNeil showed up, but defendant said the local police force was their only option. Mr. Baptie explained that he owed Mr. Bruno thirty or forty bucks for baseball cards and that was it. Defendant said he would talk to Mr. Bruno, and then the phone rang. It was Mr. Bruno.

Friday, August 15, 2014

Mistrial Mishaps

State v. Pettitt, 2014 VT 98

By Elizabeth Kruska

How many times has this happened to you? You ask a witness a question, and instead of answering the question you asked, she gives you mountains of irrelevant, highly prejudicial information instead.  Yeah.

Unfortunately, this happens. And it’s what happened in Mr. Daniel Pettitt’s restraining order violation trial. The issue was whether Daniel violated a restraining order held by his girlfriend (Girlfriend) by coming within 300 feet of her and her residence. She said he did. A third person said he did. He said he didn’t.

Termination Woes

In re A.W. and J.W., 2013 VT 107

By Elizabeth Kruska

Termination of parental rights: it’s serious, and it’s final. A parent who has been TPR’d can appeal, but that’s about it.

AW and JW were taken into DCF custody, and eventually a TPR petition was filed. A hearing was held, and parental rights were terminated with respect to AW and JW. There was another child, EW, and the petition was denied relative to him. At the hearing, Father argued that he was making progress, so his rights should not be terminated. The trial court terminated his rights, citing some difficulties in the relationship with Father and the kids, and the fact the kids had adjusted very well to their new home. Dad appealed.