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Mid-November Update – LexBlog



“What’s a computer?” 
“Can you eat it?” 

Technically, we’re just about two-thirds through November, but “mid” is close enough. 

 Yesterday, November 18th, SCOV issued a lone opinion. This one touches on some very interesting issues about the power of the probate division to order damages due to a financial guardian’s malfeasance, but ultimately boils down to whether an order is final or not. Here, former guardian was removed, and after several days of hearings, was found to owe his mom’s estate over a million bucks. But, the probate division didn’t enter a final order because it still needed to figure out the fees and costs piece and gave the parties two months to submit such requests. In the meantime, former guardian appealed to the civil division (pro se at first, with a lawyer later). Ultimately, the civil division concluded that the probate division had no authority to order damages to the estate under these circumstances and dismissed the probate order. The court-appointed administrator of mom’s estate appeals. SCOV concludes that there was no final order in the probate division—remember the fees and costs piece—and therefore the civil division had no subject matter jurisdiction to dismiss the probate division’s order. Back it goes to the probate division to wrap it up with a final order. Anyone want to take bets on how long it takes to make its way back to SCOV? In re Thomas, 2022 VT 59.       

On the 10th, SCOV issued a 38-page opinion. One might expect a dissent in an opinion of such length, but one would be mistaken in that expectation. As the opinion explains: “The factual and procedural background of this case is complex.” Because I can, here’s how I’m going to lay it out: this is a business deal amongst some landscaping folks that went bad. Is there more to it than that? Of course. Am I going to cover it all? Nope. The parties first trip to court ended in a 2011 stipulated judgment that required defendant to turn over certain business records pertaining to the parties previously-jointly-owned-but-broken-up-and-belonging-to-plaintiff-now business. Many years down the road, there was federal litigation—some involving defendant, some not. Then plaintiff sued defendant in state court for an enforcement-of-judgment action. Grossly oversimplified, the trial court ended up more or less dismissing everything except one count, which went—roughly—in defendant’s favor, and while the trial court found that defendant had retained some records that maybe she wasn’t supposed to, the retention wasn’t in bad faith, and the stipulated judgment order was ambiguous, so no attorney’s fees for plaintiff. Plaintiff appeals. Long story short? The only thing SCOV really disagrees with the trial court on is that defendant wasn’t allowed to retain copies of certain records—turns out she can. Not a very satisfying trip to Montpelier for plaintiff. Sutton v. Purzycki2022 VT 56.


Three opinions on November 4, 2022.

First, we have a statute of limitations on judgments question. Plaintiff and defendant get divorced about a dozen years ago. Their final order requires plaintiff to refinance the marital home and pay defendant $25K for her equity. If he doesn’t, then defendant can take over, boot plaintiff, and buy him out. Guess what didn’t happen? That’s right—either of those things. At any rate, over the years, and as recently as 2015, the parties had agreed to modify the terms of that order amongst themselves. When plaintiff moved to “enforce”—meaning get out of paying the $25K—the order in 2020, the trial court found that the statute of limitations had expired but because the parties had acknowledged the debt, it was still enforceable. Plaintiff appeals, and SCOV affirms, reasoning that the trial court’s analysis was within bounds and consistent with the factual circumstances. The acknowledgment of the debt in 2015 and the attempt to enforce it within six years (the contract statute of limitations) means that the debt isn’t barred. If there’s a moral to this story, it’s probably make sure people acknowledge it when they owe you money. Traudt v. Traudt2022 VT 58.


Second is a health-insurance regulatory case. I’d like to be able to explain with more authority about contribution-to-reserves (CTR) rates and exactly how they work, but here’s my haphazard take—the higher the rate, the more the insurance company contributes to its reserves pool and the more premiums cost. The Green Mountain Care Board (GMCB) told Blue Cross and Blue Shield (BCBS) to reduce its proposed 1.5% rate to 1.0%. BCBS moved for reconsideration and ultimately appealed. The majority says, “Look, rates are set. This is moot and it’s not in the ‘negative collateral consequences’ nor the ‘capable-of-repetition-yet-evading-review’ exceptions. Game over.” The dissent (Justice Cohen joined by Chief Justice Reiber) reasons that the ‘capable-of-repetition-yet-evading-review’ exception applies here and that SCOV should deal with it now. In re Blue Cross and Blue Shield2022 VT 53.     


Our final case is a custody fight between mom and dad. Mom moved to Florida and moved to modify physical and legal rights and responsibilities. The trial court denied her motion and found (1) that mom’s move to Florida was not unanticipated; (2) that dad’s medical neglect was, however, a change in circumstances; and (3) when it got to best interests, refused to consider mom’s allegations of sexual abuse or adult stepdaughter’s allegations of abuse at dad’s hands because all the allegations predated the divorce. On appeal, SCOV affirms on points one and two, but reverses and remands on the best-interests analysis because stepdaughter’s allegations of sexual abuse by dad are not barred just because they occurred before—but didn’t come out until after—the divorce. SCOV affirms, however, as to the trial court’s finding that mom’s allegations were not credible. LaFlam v. LaFlam2022 VT 57.  


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