Friday, September 19, 2014

Trial Court, Fire Up Your Calculator

Meyncke v. Meyncke, 2013 VT 82

By Elizabeth Kruska

There’s kind of a whole lot going on in this case. Husband and Wife got divorced in 2007. The Court split the property evenly, including Husband’s 401(k). The Court also ordered that Husband pay Wife $6390 per month for 13 years. That’s a million dollars. If I had a million dollars I’d buy you a fur coat (but not a real fur coat. That’s cruel.)

The thing about 401(k)s is that you can’t just break them in half, like a cookie. There are potential tax problems, so if they’re not divided appropriately, someone could get really jammed up with a tax problem. If parties are going to split up retirement accounts in a divorce, they have to file what’s called a qualified domestic relations order (QDRO, pronounced “quadro”).

The divorce order was final on October 26, 2007, and in the order the court required Husband to file a QDRO. As of November 9, 2007 (10 days under the rule for computation of time), husband hadn’t filed that yet. Wife, on the other hand, filed a motion to alter or amend the final order. That order kicked around the court for a while, and on December 28, the judge ordered the parties to get together and make a QDRO. The motion was denied on January 25.

Sunday, September 14, 2014

Nasty Nominal

Evans v. Cote, 2014 VT 104

By Andrew Delaney

This is a case where $1 in damages carries a $22.4K attorney’s fees kicker. How the heck does that happen?

Vermont has a few statutes that apply to messing with somebody else’s trees. One of these statutes authorizes treble damages (as a musician, I think “triple” is a far-more-appropriate term, but nobody asked me); the unlawful mischief statute provides a potential route to attorney’s fees.

The parties have been neighbors since 1980. They’ve never agreed as to where the boundary line between their properties was, and they’ve been feuding about it for some time. Defendant’s deed said the middle of a discontinued road and plaintiff thought the entire road was his. Plaintiff got a default declaratory judgment against defendant in 2007, which defendant later unsuccessfully tried to have vacated.

Where a Change in use Makes no Difference

In re Burlington Airport Permit, 2014 VT 72

By Jeffrey M. Messina

This appeal comes from a grant of summary judgment in favor of the Cities of Burlington and South Burlington by the Superior Court Environmental Division. The Environmental Court upheld the South Burlington Zoning Administrative office’s issuance of 54 zoning permits to the City of Burlington and Burlington international Airport (BTV) (together, Applicants) and concluded the Applicants were not required to submit a site plan for zoning board approval.

Each permit allowed BTV to demolish, remove, and fill in the cellar holes of the vacant structure on BTV-owned property. Neighbor contends the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington (SoBu) Land Development Regulations (LDR). 

At its very core the controversy is about noise: airport-generated noise and its effects on immediate neighbors.

Saturday, September 13, 2014

Rolling Stone

Stone v. Town of Irasburg, 2014 VT 43

By: Jeffrey M. Messina

Plaintiff, the Treasurer of the town of Irasburg, sued the Town claiming the Select Board acted unlawfully in ordering her to raise her bond to $1 million then preventing her from doing so. She sought damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process.

Plaintiff was elected Treasurer of the Town of Irasburg, and almost immediately tension developed between her and the Select Board. About a month into the position, a member of the Board proposed the town's auditors should perform an audit every two weeks for the first two months of plaintiff’s term, and every month thereafter during the time she holds the position. After the first audit, the auditors told the Board they were unable to balance the books due to several mistakes in the reports submitted by plaintiff.

This is Never Funny

In re Smith, Esq., 2014 VT 77 (mem.)

By Jeffrey M. Messina

The usual wit and banter is laid aside here. Regardless of the reasoning, the outcome is nothing to laugh about.

In June 2014, the Vermont Professional Responsibility Board recommended disbarring the Respondent effective as of a previous date of suspension approximately a year prior. Respondent did not appeal and SCOV, by its own motion, declined review.

A Little Late to the Party

In re Babson, 2014 VT 105

By Andrew Delaney

The SCOV seems angry in this opinion—almost like the words are bright, flaming, candy-apple-red angry. Hell, it makes me feel like I’ve done something naughty just reading it.

Petitioner filed a second post-conviction relief (PCR) petition, in an attempt to reinstate his appeal from his first PCR on the ground that his court-appointed counsel failed to file a notice of appeal. “The trial court dismissed petitioner’s request, concluding petitioner had no constitutional right to counsel in his PCR.” In a limited manner, the State supports petitioner’s request. It’s sort of left-handed support—I’m left-handed so I can say that—but it’s support nonetheless.

Friday, September 5, 2014

Give Credit Where It’s Due

State v. Perry, 2014 VT 102

By Elizabeth Kruska

You know what’s confusing? Corrections math! It’s confusing because sometimes people have different sentences and they work together in different ways and sometimes they get credit toward their jail sentences and sometimes they don’t, and the trick is to know what goes where. It’s a talent to figure this stuff out, really.

Here’s the story with Mr. Roger Perry. Two separate burglaries happened; one in December 2010 and one in January 2011. For whatever reason, Roger didn’t get charged with those offenses until February 2012. He entered into a plea agreement in June 2013 and then got sentenced to the burglary charges in July. The sentence he got was 3-15 years all suspended but 6 months to serve. This means he’d have to go to jail for 6 months and then be on probation. If he violated his probation, he could have to serve the balance of the 3-15 years in jail.

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.