In In re Pappas (Bankr. D.Wyo. 1989) 106 B.R. 268, the Federal Deposit Insurance Corporation (FDIC) was permitted to pursue a suit for legal malpractice against a lawyer/debtor in order to reach its malpractice carrier, a situation similar to that in Forsyth.
The court recited its own version of the three conditions that must be met before the action could proceed:
"(1) Where it is necessary to join the debtor to establish liability against a third party;
(2) a creditor pays the debtor's reasonable costs of defense, including legal fees and expenses, where those costs and expenses and fees are not borne by a third party;
3) the creditor may not execute on any judgment obtained in the litigation against the debtor personally or against his assets." (Id. at p. 271.)
Because "in Wyoming it is necessary to establish the liability of an insured before insurer can be held liable," and because the FDIC "agreed to reimburse the debtor his reasonable costs of defense" and also agreed "not to execute on any judgment it may obtain against debtor either personally or against his assets," the conditions were met. (Ibid.)
In Glover v. Crayk (Wyo. 2005) 2005 WY 143, 122 P.3d 955, the parties married in 1979 and separated in 1997.
They executed a property and child custody agreement, which awarded wife one-half of the sum that accrued in husband's military retirement fund during the first 17 years of his military career.
That agreement was then included within the divorce decree. (Id. at pp. 956-957.)
"The language of the divorce decree states that wife's entitlement is limited to 'one-half (1/2) of the sum that accrued in husband's retirement fund during the first seventeen (17) years of husband's military career.'" (Glover, supra, 122 P.3d at p. 958.)
In 2003, wife filed a motion to modify the retirement provision of the agreement pursuant to the time rule, and argued it would provide a fair and equitable distribution of husband's military pension. Husband objected because the proposed modification gave wife benefits beyond those accrued during the first 17 years of his service, as provided in their agreement. The trial court granted wife's motion and modified the agreement. (Glover, supra, 122 P.3d at pp. 956-957.)
"The divorce decree provided for the division of husband's military retirement benefits. The ambiguity in the decree is the absence of a formula to be applied in calculating the amount wife is entitled to from husband's retirement benefits. The district court accepted wife's argument that her one-half should be calculated pursuant to the 'time rule.' The 'time rule' is computed by multiplying 50% times a fraction, the numerator of which is the number of months of marriage during husband's creditable military service and the denominator of which is the total number of months of husband's creditable military service. The result is the percentage of husband's disposable retired pay to which wife is entitled. See In re Marriage of Hunt, 909 P.2d 525, 530-32 (Colo.1995). This allows wife to realize a benefit from promotions and pay increases husband may have received following the divorce up until the time of his retirement." (Glover, supra, 122 P.3d at p. 958.)
The Wyoming Supreme Court agreed with husband's argument that the wife's proposed distribution, as adopted by the trial court, violated the express terms of the separation agreement:
"Wife's formula is inconsistent with the language of the divorce decree. Wife's formula awards her the benefit of any income increases husband received after the first seventeen years of his military career. Wife supports this formula by simply stating that it is fair and equitable. The validity, let alone the 'equity,' of wife's formula is not the issue. The real issue is the intent of the divorce decree. Nowhere does wife present her formula within the context of the language of the decree. Upon review, we find no indication that the divorce decree anticipated husband's retirement calculation to be based upon sums yet to be accrued. Instead, the divorce decree speaks of sums already accrued. Indeed, the decree expressly defines the time frame for accrual as the first seventeen years of husband's military service. Under these circumstances, we hold that the district court erred in adopting wife's formula." (Glover, supra, 122 P.3d at p. 958.)
In State v. Robins (Wis. 2002) 2002 WI 65, 646 N.W.2d 287, 253 Wis. 2d 298, the defendant engaged in a series of online conversations with an undercover officer posing as a 13-year-old boy. The conversations "centered on explicit sexual matters." (Id. at p. 289.)
The defendant subsequently had a telephone conversation with another undercover officer, during which they made arrangements to meet at a Burger King restaurant. The defendant drove to the restaurant at the appointed time and "was arrested as he walked towards the restaurant." (Id. at p. 290.) After his arrest, the defendant "admitted that he had set up the meeting with the supposed victim for the purpose of having sex with him." (Id. at p. 291.)
The defendant was charged with attempted child enticement under Wisconsin law. He filed a pretrial motion to dismiss, "alleging insufficient evidence to support the bindover." (Ibid.)
The trial court denied the motion to dismiss, and the defendant appealed. The Wisconsin Supreme Court rejected the defendant's claim that there was insufficient evidence to support the charge of attempted child enticement.
The court explained:
"The complaint and preliminary hearing establish that the defendant engaged in sexually-explicit online 'chats' and e-mails with a person he thought was a 13-year-old boy, for the express purpose of illegally soliciting that boy for sex; that he arranged a meeting time and place to effectuate that purpose; and that he traveled to and arrived at the agreed-upon meeting place, where he was arrested. These allegations easily establish probable cause to believe that Robins attempted the crime of felony child enticement; that is, that he possessed the intent to entice a child for sexual intercourse and that he engaged in unequivocal acts in furtherance of that criminal objective such that it was improbable that he would desist of his own free will." (Id. at p. 295.)
In State v. Koenck (Wis.App. 2001) 2001 WI App 93, 626 N.W.2d 359, 242 Wis. 2d 693, the defendant also engaged in Internet communications with officers posing as child victims. The defendant planned to meet the victims at a McDonald's restaurant. On the day and time of the meeting, he drove to the vicinity of the restaurant, parked in a nearby bank parking lot, and was arrested as he "began walking towards the McDonald's." (Id. at p. 361.)
The defendant was charged with attempted child enticement, and he filed a motion to dismiss the criminal complaint.
The trial court denied the motion, and the appellate court affirmed.
The court held there was probable cause to charge the defendant with attempted child enticement, explaining: "Koenck did everything necessary to insure the commission of the crime intended . . . ." (Id. at p. 366.)
In State v. Horngren (Wis.App. 2000) 2000 WI App 177, the authorities were called to an apartment to investigate a possible suicide threat.
They found the front door unlocked, and entered. Officers restrained one occupant, and conducted a sweep of the premises for other occupants, seeing marijuana in plain view in the course of the sweep. (Horngren, supra, at p. 510.)
The Wisconsin Court of Appeals, citing the lead opinion in Ray, upheld the warrantless entry, and the subsequent denial of a suppression motion, under the community caretaking exception. (Id. at p. 513.)
Thus, the Wisconsin Court of Appeals followed, as persuasive authority, the lead opinion and concurring opinion of the California Supreme Court in People v. Ray (1999) 21 Cal.4th 464.
In State v. Douglas (1985) 123 Wis. 2d 13 365 N.W.2d 580, the defendant called 9-1-1 to report that he had shot three of his family members. The defendant requested that the police enter the basement of the home, where the defendant was located.
The police entered the basement, found the bodies and took the defendant into custody. Over the course of the next two days, crime lab technicians conducted an investigation of the premises, which ended on November 8, at approximately 8:00 p.m. Twenty-two hours later, on November 9, two officers returned to the defendant's home and found an incriminatory letter in the defendant's bedroom. The Wisconsin Supreme Court granted review to "determine whether the November 9th reentry of the defendant's home by police violated his constitutional rights." (Id. at p. 582.)
The court began its analysis by explaining that "'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. ...' " (Douglas, supra, 365 N.W.2d at p. 582.)
The court concluded that although the initial entry was "with ... consent," the police could not "justifiably rely upon that consent to reenter the defendant's home ... approximately forty-five hours later" (ibid.): "The defendant's consent ... justified the search made at that time. But such authorization is not perpetual. The courts, including this one, have scrutinized with the greatest care claims by the state to the use of evidence seized in warrantless searches of one's home" (id. at p. 584).
In a footnote, the court distinguished decisions from other jurisdictions that "did not involve a search of the defendant's home," including one case that permitted the repeated "search of an automobile." (Id. at fn. 7.)
In Johnson v. Heritage Mut. Ins. Co. (Ct.App. 1994) 188 Wis. 2d 261 524 N.W.2d 900, the court concluded that the test driver was not a permissive user of the dealership because he was driving the car at the potential purchaser's request, and had not been given permission to drive by the dealership. (Id. at p. 902.)
Further, the accident occurred during a test drive, and there is no indication that the test driver was a minor. (Id. at p. 901.)
In In the Matter of McGraw (Bankr. W.D.Wis. 1982) 18 B.R. 140, the debtor was involved in an automobile accident while driving his employer's van and trailer rig.
The injured parties and the estates of the deceased brought suit against the debtor and his employer. The issue, according to the court, was whether "the debtor's presence as a defendant in creditors' civil suit is required for an adjudication of the employer's vicarious liability and the apportionment of negligence between the parties." (Id. at p. 141.)
The court concluded that the question must be answered affirmatively because "without the debtor, the plaintiffs cannot establish the requisites of the respondeat superior doctrine, nor can negligence be apportioned among the parties as required by state law." (Ibid.)
In Grohmann v. Grohmann (1993) 180 Wis.2d 690, husband was both the settlor and beneficiary under a discretionary trust.
Wife argued that 1) husband's undistributed trust income should be used in the calculation of child support, and 2) the trial court had authority to order payment of child support from the trust.
The Wisconsin Court of Appeal accepted wife's first argument, but ruled that her second argument was premature.
It stated that wife had not established that she was a judgment creditor, thus the court had no authority to order payment from the trust. ( Grohmann v. Grohmann, supra, 180 Wis.2d at p. 696.)
"Nothing in the statute section 701.06, subdivision (4)(b) authorizes a court to relieve trustees of their discretion over when a trust shall make payments to or on behalf of a beneficiary, or to substitute its own discretion for that of the trustees. Under the statute, the decision to distribute trust income remains with the trustees." ( Grohmann v. Grohmann, supra, 180 Wis.2d at p. 695.)
The Wisconsin Supreme Court affirmed the ruling of the Court of Appeal. It concluded that wife's judgment creditor argument was premature because she had failed to show that husband had not met his support obligation. ( Grohmann v. Grohmann (1995) 189 Wis.2d 532, 539 525 N.W.2d 261.)
In Green v. Jones (1964) 23 Wis. 2d 551 128 N.W.2d 1, the trucking company contracted with the material suppliers to deliver the materials for some projects and contracted directly with the general contractor for delivery to other projects.
Green held that the trucking company drivers were covered by the prevailing wage law because the materials they delivered were immediately distributed over the roadway surface. Their tasks "were functionally related to the process of construction." (Green, supra, 128 N.W.2d at p. 7.)
As soon as the driver dumped or spread the material, it was leveled by graders or mixed with cement under the general contractor's supervision. "The delivery of materials was an integrated aspect of the 'flow' process of construction." (Ibid.)
In Gould v. American Family Mutual Ins. Co. (1996) 198 Wis. 2d 450 543 N.W.2d 282, the head nurse of the secured dementia unit of a residential health care center was injured when the defendant, a patient diagnosed with Alzheimer's disease who was "resistant to care, and occasionally combative," knocked her to the floor. (Id., 543 N.W.2d at p. 283.)
The Wisconsin Supreme Court held that "an individual institutionalized with a mental disability, and who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation." (Ibid.)
In Duel v. Ramar Baking Co. (1945) 246 Wis. 604 18 N.W.2d 345, a person was fraudulently induced to become a member of a mutual insurance company by "false representations as to the corporation's solvency. ..." (Id. at p. 606 18 N.W.2d at p. 346.)
The member became aware of the fraud only after insolvency proceedings began. (Ibid.)
The Wisconsin Supreme Court held that the member could not rescind and was not relieved of his liability under the policy because rights of third parties had intervened. "Rights of creditors and other policyholders intervened subsequent to the defendant's becoming a member. They are innocent of the fraud, and as to them the defendant has no right to cancellation or rescission of his policy, whatever its rights against the company were had it sought to exercise them." (Id. at pp. 606-607 18 N.W.2d at p. 346.)
Additionally, "voidance of membership in a mutual insurance company cannot be permitted after insolvency proceedings are begun, for every policyholder member would have equal right with the instant policyholder to void his contract, if not on the ground of fraudulent misrepresentations of solvency, on the ground of mistake of fact as to solvency and there might be no members left to respond to the claims of creditors." (Id. at p. 607 18 N.W.2d at p. 347.)
In Briese v. Maechtle (1911) 146 Wis. 89 130 N.W. 893, a 10-year-old boy playing tag ran into and injured another boy playing marbles during school recess.
The court found no actionable negligence.
The defendant's duty of care was that of a child his age.
The court asked:
"Can any man truthfully say as he recalls the scene that the ten year old defendant in the present case was doing anything more or less than healthy boys of his age have done from time immemorial and will continue to do as long as the race retains its activity and love of innocent sport? It seems to us that this question can receive but one answer, and that in the negative." (Id. at p. 894.)
In State v. Flippo (W.Va. 2002) 212 W. Va. 560, 575 S.E.2d 170, following remand, the trial court denied Flippo's motion for a new trial, which was based, in part, on the contention that certain evidence introduced at trial had been unlawfully seized.
On appeal, the Supreme Court of Appeals considered the lower court's ruling that the evidence was admissible under the implied consent exception to the warrant requirement of the Fourth Amendment, the existence of such an exception being a matter of first impression for West Virginia's highest court. (State v. Flippo, supra, at p. 178.)
The court undertook an extensive review of federal and sister-state authority (id. at pp. 178-180), and held that "consent to search may be implied by the circumstances surrounding the search, by the person's prior actions or agreements, or by the person's failure to object to the search. Thus, a search may be lawful even if the person giving consent does not recite the talismanic phrase: 'You have my permission to search.'" (Id. at p. 180.)
The court cited with approval reasoning by other courts that '"'one can hardly expect the police to get a search warrant for a house or building when the owner is obviously cooperative and gives every appearance of being the victim, rather than the perpetrator, of a crime"'" and that "'when the owner or occupant of the premises permits the police to make a search without a warrant at a time when the occupant is not even suspected of complicity in the crime, the police are lulled into a sense of security, and therefore the occupant cannot later object if the search led to the discovery of evidence which ultimately resulted in his being charged with complicity in the crime.'" (Ibid.)
The court further held:
"When a person summons the police to a dwelling he/she owns, possesses, or controls, and that person states that a crime was committed against him/her or others by a third person at the premises, he/she implicitly consents to a search of the premises reasonably related to the routine investigation of the offenses and the identification of the perpetrator .... As long as the person summoning the police is not a suspect in the case or does not affirmatively revoke his/her implied consent, the police may search the premises without a warrant for the purposes of investigating the reported offenses and identifying the perpetrator, and evidence obtained thereby is admissible...." (Id. at p. 183; fns. omitted; accord, Brown v. States (Tex.Crim.App. 1993) 856 S.W.2d 177, 182; State v. Fleischman (Ariz.App. 1988) 157 Ariz. 11, 754 P.2d 340, 344; Thompson v. State (Minn. 1986) 384 N.W.2d 461, 463.)
Ultimately, the court found the police had implied consent to search the cabin during their initial response to Flippo's call for assistance. (State v. Flippo, supra, 575 S.E.2d at p. 183.)
Subsequently, however, Flippo was taken to the police station in order to make a formal statement; there, he was informed he was a suspect and advised of his rights. As of that point, the court determined, the police were required to stop searching the cabin and obtain a search warrant. Evidence seized afterward without a warrant was subject to suppression. (Id. at p. 186.)
In State v. Allah Jamaal W. (W.Va. 2000) 209 W. Va. 1, 543 S.E.2d 282, the court adhered to its prior decision that a criminal defendant had no constitutional right to have a witness appear in civilian attire (id. at p. 285), and held the issue of whether a defense witness should be required to wear prison attire while testifying before a jury is generally a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a showing of abuse. (Id. at p. 287.)
The trial judge, the court said, should not permit an incarcerated defense witness to appear at trial in the distinctive attire of a prisoner, but if a timely motion to permit the witness to testify in civilian clothes is denied, the court must state the reasons for denial on the record.
The court noted that despite what it called a "general prohibition" against forcing defense witnesses to testify in prison attire, "courts have not overturned convictions on the sole basis that a witness for the defendant was forced to wear prison attire while testifying." (Id. at p. 286.)
In the case before it, the trial judge had denied a timely motion and failed to provide any relevant reason for the denial. The state conceded error, and the court ruled the denial was an abuse of discretion "as a result of" the record's silence. (Id. at p. 288.)
In Holly's Inc. v. County of Greensville (VA 1995) 250 Va. 12, 458 S.E. 2d 454, the bid notice stated that "On Thursday, March 17, 1994 at 2:00 p.m. all bids received ... will be opened" (id. at p. 455), but the bidder's bid was not received until 2:02 p.m. or 2:03 p.m. (Id. at p. 456.)
The Virginia Supreme Court rejected the bidder's argument that its bid was timely and concluded in part that the bid documents required bids to be submitted before 2:00 p.m. because "a bid could not be opened at 2:00 p.m. unless it was received before 2:00 p.m." (Id. at p. 457.)
In Dugger v. Commonwealth (2003) 40 Va. App. 586 580 S.E.2d 477, the passenger "forcibly took control of the steering wheel from the driver and caused the vehicle to go off the road and into a guardrail." (Id., 580 S.E.2d at p. 479.)
The Virginia Court of Appeals found the passenger was in actual physical control of the vehicle.
The court noted the purpose of the Virginia DUI (driving under the influence) statute is to "address ... the risk of harm posed by vehicles under the control of intoxicated individuals," and that it did not matter whether the intoxicated individual was driving in the typical sense or controlling the car by grabbing the wheel. (Id. at p. 481.)
"By forcibly taking the steering over from the driver, appellant manipulated perhaps the most fundamental feature of a moving vehicle--the direction in which it would travel. That deliberate act placed him in actual physical control of the vehicle." (Ibid.)
In Crosswhite v. Shelby Operating Corp. (1944) 182 Va. 713 30 S.E.2d 673, a three-year-old girl was killed.
The child and her mother were guests in a fourth floor hotel room and the mother left the child playing in the bedroom while she went into the bathroom to wet a cloth to use on the child's younger sister. (Crosswhite, supra, 30 S.E.2d at p. 673.)
When the mother returned she saw the child standing on the windowsill with her back to the window screen. (Ibid.) The mother rushed to rescue the child, but before she could reach her the child leaned against the screen and fell out of the window. (Ibid.)
Reversing a judgment entered in favor of the defendant hotel owner after the trial court sustained the defendant's demurrer to the complaint filed by the child's administrator, the Crosswhite court stated that "the duty of an innkeeper to keep his premises reasonably safe applies to 'defective or insecurely or unsafely fastened window screens.'" (Id. at p. 675.)
The Crosswhite court concluded the hotel owner's liability for negligence presented questions for the jury, stating:
"In the instant case, we do not know the height of this window sill from the floor, but it was low enough for this three-year old child to climb upon it. The window was open; it was summertime, and this three-year old child could not have opened it. The mother saw the wire screen and had a right to assume that this screen was fastened as wire screens ordinarily are fastened. It can be argued that she would not have left her child in a room with an unscreened open window, whose sill was low enough for this three-year old child to climb upon it; and that she did leave it because she was lulled into safety by seeing what seemed to be a perfectly good screen. While screens are installed to keep bugs out, they do afford some protection to little children; and its presence here lulled the mother into a false sense of security. It can be further argued that the innkeeper knew of its defects or should have known of it. Almost without exception these are jury questions; from which it follows that the judgment appealed from must be reversed, and that the case should be remanded for a new trial upon its merits." (Crosswhite, supra, 30 S.E.2d at p. 675.)
In Atkins v. Commonwealth (2010) 57 Va.App. 2 698 S.E.2d 249, the court considered a defendant's argument that Brendlin v. California (2007) 551 U.S. 249 afforded him standing as a passenger to object to a search of a vehicle stopped because a license plate lightbulb was burned out. (Id. at p. 8.)
In rejecting the argument, the court reasoned as follows: "Brendlin does not address a defendant passenger's right to contest the search of the vehicle; Brendlin addresses only a passenger's challenge to the stop itself. . . . . . . By its own language, Brendlin does not address whether a passenger can challenge the legality of a search of the vehicle in which he is a passenger." (Atkins, supra, at p. 8.)
The court proceeded to consider the facts under Rakas and determined the defendant lacked a legitimate expectation of privacy in an area under the seat where guns were found. (Atkins, supra, at pp. 8-9.)
In Anderson v. Commonwealth (1997) 25 Va.App. 565, the defendant entered into a plea agreement pursuant to which he received a suspended sentence and "agreed to waive 'his Fourth Amendment right against unreasonable searches and seizures' for one year." (Id. at p. 567.)
Unaware of this waiver, the police conducted a warrantless search of the defendant's person, which was not supported by probable cause.
The Virginia Court of Appeal held that the police officers' lack of knowledge of the waiver did not prevent the use of the waiver to justify the search, reasoning: "Absent a legitimate expectation of privacy, there can be no violation of the Fourth Amendment." (Id. at p. 576.)
The Virginia Supreme Court subsequently affirmed this holding, "finding meritless any contention that the officers' lack of prior knowledge of Anderson's waiver rendered the search invalid." (Anderson v. Commonwealth (1998) 256 Va. 580, 586.)
The Virginia Supreme Court reasoned:
"The waiver expressly states that Anderson agreed to submit his person or property to 'any law enforcement officer.'" (Ibid.)
In ADC Fairways Corp. v. Johnmark Const., Inc. (Va. 1986) 343 S.E.2d 90, the Supreme Court of Virginia considered whether a trial court had erred in awarding a contractor (Johnmark) lost profits on a breached agreement to rehabilitate various apartment units.
The court noted that Johnmark presented the following evidence in support of its claim for lost profits:
"Johnmark's president, Richard McCarty, described how lost profits were calculated on the work it did not complete because of the dispute with ADC. He said, on direct examination, that the units were to be rehabilitated for a price of $2,562.50 per unit, a figure which he had bid to secure the contract with ADC. He testified further that in his bid he computed 'approximately 15 percent' of the $2,562.50 as profit. He went on to say that the contract called for the completion of 171 units. Thus, profits were calculated by taking 15% of $2,562.50 and multiplying that number by 171." (Id. at p. 92.)
The ADC Fairways Corp. court rejected Johnmark's argument that this testimony constituted sufficient evidence to allow the court to estimate Johnmark's lost profits with reasonable certainty:
"Lost profits should not have been awarded in this case. They were completely speculative. The $47,781.13 figure was nothing more than the profit Johnmark hoped to make at the time of the bid. There was no evidence to establish that this is the profit that would have been made had Johnmark completed the project. Indeed, there was evidence from Johnmark's president that on a similar rehabilitation project for the same developer no profit had been made whatever.
"We said in Boggs v. Duncan, 202 Va. 877, 883, 121 S.E.2d 359, 363 (1961), that 'It is well settled that damages are recoverable for loss of profits prevented by a breach of contract "only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.' " (Citations omitted.) That standard was not met in this case. We hold, therefore, that the trial court erred in awarding Johnmark lost profits of $47,781.13." (ADC Fairways Corp., supra, 343 S.E.2d at p. 93.)
In State v. Harrington (1969) 128 Vt. 242 260 A.2d 692, the defendant, an attorney representing the wife in a divorce proceeding, threatened, among other things, to have his client report the husband to the Internal Revenue Service, the United States Customs Service, or other governmental agencies for unspecified violations if the husband did not agree to a settlement involving a payment of $175,000 to the wife. (Harrington, 260 A.2d at pp. 695-696.)
The Supreme Court of Vermont held that "these veiled threats exceeded the limits of Attorney Harrington's representation of his client in the divorce action" and constituted extortion. (Harrington, at p. 699.)
In State v. Grega (1998) 168 Vt. 363 721 A.2d 445, the Vermont Supreme Court ruled that multiple searches of a residence occurring over several days fell within the scope of the defendant's consent.
On September 13, the defendant gave the police written consent to search his home as part of an investigation into the murder of his wife. Later that day, the defendant left the state.
The officers searched the residence on September 13, and then returned to conduct additional searches during the following two days.
The defendant did "not contest that the initial search on September 13 was permissible," but argued that "the subsequent ... searches on September 14 and 15 exceeded the scope of his consent." (Id. at p. 452.)
The court ruled that the police did not exceed the scope of consent by conducting searches "on two subsequent days":
"Defendant left Vermont the same day he signed the consent form, without revoking his consent. He did not indicate, by word or action, that his consent expired at the end of that day, or was in some other way restricted. ... We note that the searches were close together in time, and part of a continuous criminal investigation into the victim's death. On these facts, the police entry and search of the condominium on three consecutive days was within the scope of defendant's consent." (Grega, supra, 721 A.2d at p. 453.)
The court further noted that the "defendant was neither arrested nor charged at the time of the contested searches. The fact that he may have been under suspicion, standing alone, did not change defendant's status enough to undercut his consent." (Ibid.)
In State of Vermont v. Welch (1992) 160 Vt. 70 624 A.2d 1105, the Supreme Court of Vermont held that a criminal defendant had a privacy interest in her pharmaceutical records, based on a reasonable expectation that those records would not be arbitrarily disclosed. (Id., 624 A.2d at p. 1109.)
The court concluded, however, that the "'pervasively regulated industry'" exception to the warrant requirement allowed for the warrantless inspection of her records in furtherance of the enforcement of statutes pertaining to closely regulated businesses such as pharmacies. (Id. at pp. 1110-1111.)
The court specifically noted the state interest in the regulation of dangerous drugs (id. at p. 1111), and concluded the warrantless inspection of pharmacy records undertaken in compliance with statutory procedures was reasonable (id. at p. 1112).
In Andrus v. Dunbar (2005) 178 Vt. 554 878 A.2d 245, the landlord sent a notice to the tenant on May 1, 2003, which stated that the landlord was terminating the tenancy as of May 31 and suggested that the tenant contact the landlord to "work out a payment plan before this action has to be taken." (Andrus, at p. 554.)
The applicable statute required 14 days' notice. (Andrus, at p. 555.) On June 12, the landlord sent another notice to the tenant stating that the tenancy was being terminated for nonpayment of rent as of July 5 and informing the tenant that he could prevent the termination of the tenancy by paying all rent due before that date. However, on June 17, the landlord filed an eviction action. (Andrus, at p. 554.)
The tenant moved to dismiss the action on the ground that neither of the notices was valid. The trial court denied his motion. (Andrus, at p. 555.)
The Vermont Supreme Court reversed. It concluded that, because the landlord's June 12 notice " 'unequivocally recognized the tenancy as existing,' " the tenancy had not been terminated when the eviction action was initiated so the motion to dismiss should have been granted.
The court asserted that there was "confusion about landlord's intent," and the tenant was left to speculate about the meaning of the landlord's actions. (Andrus, at pp. 556-557.)