Wednesday, July 1, 2015

Custody Considerations

Frazer v. Olson, 2015 VT 84

By Elizabeth Kruska

Ms. Frazer (Mom) and Mr. Olson (Dad) were married in 2000, had 2 kids, and separated in 2011. They filed for divorce in April of 2013, and the final divorce hearing happened over the course of a couple days in late 2013 and early 2014. Early on they had a hearing where the magistrate created a temporary order awarding parental rights and responsibilities to Mom. Dad had time with the kids after school a few days a week and overnight on Fridays. The magistrate made findings in the case and issued the temporary order. There’s a statute that sets forth various factors a court is supposed to consider in determining where kids should be; the magistrate took the evidence and made findings consistent with that statute. One of the things the magistrate found was that Mom was the primary caretaker for the kids.

The final hearing rolled around, this time before the Family Court judge. The Family Court judge saw things a little bit differently than did the magistrate. Nevertheless, she still awarded sole parental rights and responsibilities to mom, and made a visitation schedule for dad.

Mom appeals. 

Sunday, June 28, 2015

Trust Issues

In re PRB Docket No. 2014-133, 2015 VT 63

By Andrew Delaney

When the SCOV likes something the Professional Responsibility Board does, it’ll publish it in the Vermont Reports without messin’ with it. That's what’s going on in this case. I’d imagine it’s a cinch to find a clerk to draft these suckers—but of course I’m assuming they’re lazy like me.

This case stems from a stipulation that respondent and disciplinary counsel filed with the Professional Responsibility Board’s hearing panel—admitting that respondent failed to maintain adequate trust account records. An alleged violation for keeping approximately $150 of his own money in his trust account was dismissed by the hearing panel, and a charge that he kept funds held in a fiduciary capacity in his trust account was dismissed by disciplinary counsel.

Visiting SCOV Law professor Y.T. Sam returns—from a sabbatical “huntin’ varmints”— to give us the play-by-play. “Now see here, when the SCOV sees a good-lookin’ ‘pinion, it’ll brand it like a baby cow. The SCOV got out its brandin’ iron and stamped this sucker.”

Friday, June 26, 2015

Cutting Corners and Employees

Hallsmith v. City of Montpelier, 2015 VT 83

By Amy Davis

Once you get beyond the pass-the-buck, not-my-problem vibes in this case, the main issue is “whether a post-termination judicial remedy, in the form of a breach-of-contract action or a Vermont Rule of Civil Procedure 75 petition, is sufficient to satisfy the due-process rights of an employee whose employment is protected by a ‘for cause’ requirement and who is terminated by a municipal employer following pre-termination proceedings that do not by themselves satisfy due process.” That sounds like an issue to me.

The facts in this case make for a good story. Hence, a recitation of them: Hallsmith was the planning and community development director for the City of Montpelier. Even though I’ve watched every episode of Parks and Recreation, I do not know what that means. Montpelier’s personnel plan contained a “justifiable cause” provision—nobody knows what this means either.

In November 2013, defendant Fraser, the city manager, placed Hallsmith on paid administrative leave and sent her a letter saying he was thinking about firing her. He described her “acts of unprofessional behavior and insubordination” and generally accused her of not playing well with others, and using city resources inappropriately. Then he said he was willing to meet with Hallsmith to consider any sort of response she would want to make. I think that means she was allowed to grovel.

Thursday, June 25, 2015

Something There Is That Doesn’t Love A Wall

Obolensky v. Trombley, 2015 VT 34

By Elizabeth Kruska

If good fences make good neighbors, I suppose the exact opposite is true if the fence in question is actually called a “spite fence.” A spite fence is an actual thing, and it’s exactly what it sounds like: a fence put up specifically to annoy a neighbor.

The Obolenskys owned some land and operate a bed and breakfast on the land. They have a nice view of the mountains. About 9 years after they bought their land, the Trombleys bought the parcel next door and built a house on their own land. Their house is, at its nearest point, thirty-seven feet from the Obolenskys’ land. 

The Obolenskys didn’t like this. They hired a surveyor to check the boundary, and put up some “no trespassing” signs. The opinion isn’t totally clear, but the signs might’ve been on the Trombley’s property. This didn’t go well, the police got called, and eventually the Obolenskys filed a lawsuit.

Be There, or Get Reversed

State v. Eldert, 2015 VT 87

By Elizabeth Kruska

Here’s the short version: SCOV reverses a probation violation because the trial court admitted inadmissible hearsay, and based the findings on that hearsay.

Here’s the longer version.

Stephen Eldert was convicted of some Vermont charges in 2004. He received a suspended sentence with probation. His probation had a condition saying he could not purchase, possess, or consume alcohol while on probation. This is a pretty common condition. And probably much to the delight of SCOV, this probation case doesn’t involve an argument about conditions.

Saturday, June 20, 2015

Material Dispute?

PH West Dover Property, LLC v. Lalancette Engineers, 2015 VT 48

By Andrew Delaney

When does a real-estate agent need to disclose potentially harmful-to-a-sale information about a property? Let’s find out.

There was this inn in West Dover for sale. When the real-estate agent picked up the listing, she contacted someone who’d been looking to purchase it in the past. They had some discussions and prior-prospective purchaser claimed she told real-estate agent that she’d seen flooding and had learned that the roof was in need of serious repair and might collapse.

Real-estate agent then asked seller to get an estimate for roof repairs—and seller being a carpenter who’d done most of the work on the place anyway—said the roof was fine as far as he knew, but gave real-estate agent a list of materials that’d be needed to fix the roof, or replace a huge section, or something like that.

Thursday, June 18, 2015

He Bailed. Sort of.

State v. Mottolese (Allstate Bail Bonds, Appellant), 2015 VT 81

By Elizabeth Kruska

Let’s start with a quick lesson on bail. Except in some pretty limited circumstances, when a person is charged with a crime, he or she is entitled to be bailed. That is, that the state cannot hold someone in jail simply because he or she is accused of having committed a crime. That’s that whole “presumption of innocence” business we defense lawyers are so protective of all the time.

People are supposed to be released, and are trusted that they’ll come back to show up for their court hearings. Generally speaking, telling people to come back does the trick. But sometimes there are factors that cause a court to worry that a person won’t show up. It’s possible someone lives out of state and it would be inconvenient to come back. It’s also possible a person has a track record of not showing up for court. When factors like these (but not limited to these) are present, the court could impose some amount of monetary bail. The thought is that if a person has to pay money to help guarantee his or her freedom, that he or she will show up in the future, lest the money get forfeited to the court.

Sometimes bail is set as low as a couple hundred dollars. If a person pays the full amount of bail in cash to the court, they get it back when the case is finished. It’s sort of like a security deposit.

Monday, June 15, 2015

Workers' Comp Woes

Smiley v. State, 2015 VT 42

By Andrew Delaney

We’ve made the “SOL” joke more than once amongst this collection of luminous legal analysis. Are you going to tell me recycling isn’t important and a good thing? Yeah, I didn’t think so.

The joke as such is that the abbreviation for statute of limitations (SOL) is the same as for a colloquial phrase meaning one’s luck has run out, and the bottom line is often the same. As an example: “Miss the SOL and you’re SOL, skipper.”

This is one of those weird cases in which the SCOV says something along the lines of “Got this right; got that wrong. But it’s all good anyway—affirmed.” Cryptic as that is, let’s see if we can shed a little light on the situation . . .

You snooze, you lose . . .

Natural Resources Board Land Use Panel v. Dorr, 2015 VT 1

By Jeffrey Messina

This is an appeal from the Environmental Court that affirmed an administrative finding from the Natural Resources Board (“NRB”) that Respondents’ gravel extraction activities violated an Act 250 residential subdivision permit. At issue in this case are two businesses owned by one person and two large adjacent parcels of land from which sand, rock, and gravel have been extracted from a portion of one or both of the parcels for decades.

In September 1990, the Respondents’ Predecessor in Interest (“PiI”) received an Act 250 permit authorizing a 19 lot residential subdivision on the northern of the two parcels. Among the relevant conditions of the permitit would expire one year from the date of issuance if there was no indication of intent to proceed with the project, or it would expire on October 1, 2020 unless extended by the District Environmental Commission (DEC”). Other conditions of the permit prohibited "changes . . . in the design or use" of the project without written approval and that the permit and all conditions therein would "run with the land and . . . be binding upon and enforceable against . . . all assigns and successors in interest." 

Saturday, May 30, 2015

Speak now or forever hold your peace

Stratton Corp. v. Engelberth Construction, Inc., 2015 VT 75

By Andrew Delaney

It’s always important to object to something you don’t want to happen in a timely manner. This is true for weddings and business litigation, among other things.

This is the second case with these primary parties issued in the past few weeks. The first one is here. Like the first case, Stratton was the developer and Engelberth was the general contractor for a condominium construction project. Even the catalyst for the litigation is similar—leaky roofs. This case appears to involve a different project, however, and the result and appellant are different—that’s for sure.

Let’s take a look. In 1998, developer hired general contractor “to build a 143-unit condominium complex.” Construction began in 1998 and was substantially completed by 2000. “The complex began showing signs of water leakage as early as November 1998, and leakage problems persisted throughout the remainder of the construction.” In 2007, developer settled with the condo association for approximately $7M. I assume developer wasn't too happy about that.