Phyllis Agan Lawsuit Update - VT Supreme Court

Gallery at Phyllis Agan Hearing before the VT Supreme Court

A Morning at the Vermont Supreme Court

Ten church members traveled to Montpelier on May 23, 2013, to witness the oral arguments in the appeal phase before the Vermont Supreme Court in the case of Curran vs. the Building Fund of the United Church of Ludlow, et al.  Those present were David Almond, Dick Dansingburg, Jean Eggleston, Bob and Ginny Kottkamp, Betty Merrill, Andy Ohotnicky, Ralph Pace, Lee and Linda Potter.  Four of us also represented the Black River Good Neighbor Services, one the Black River Academy Museum, one the Rotary Club. Our delegation was the majority of the 18 total observers for the 14 Ludlow charity defendants in the case. Thus church members performed community service, carrying the flag for all the organizational defendants, the majority of which had no representation present.

Before the Supreme Court arrived, we witnessed the swearing in of a new attorney. This is the ceremony that allows an attorney to practice in the Vermont Judicial System. The woman sworn in, I did not get her name, “read law” rather than graduating from law school, just like Abraham Lincoln. In Vermont, one may still gain access to practice law in the courts by self-study, apprenticeship, and passing the bar exam. One Supreme Court Associate Justice, Marilyn Skogland, also gained the ability to serve in Vermont courts by “reading law.” According to Peter Langrock, our lead attorney, as far as he can ascertain, she is the only Vermont Supreme Court justice not to have gone to law school in the history of the Court.

After the swearing in, five justices then entered the court. The bailiff stated the structure to be 30 total minutes of arguments divided in half, 15 minutes for each party. One attorney from each side would give the arguments and answer questions from the justices, the plaintiffs first, the defendants following, then repeated a second time for the remaining time of each.

The plaintiff’s attorney made a complex and technical argument that boiled down to: the case should have been settled by the judge on a point of law in the plaintiff’s favor with no jury trial necessary; the presiding trial judge made erroneous rulings; the defendants (we) provided no evidence to support our burden of proof that Phyllis Agan was not “unduly influenced” in the filing of the seventh amendment to her trust. The plaintiff’s attorney was interrupted numerous times by questions from justices. The most telling of these was a statement made by Associate Justice Skogland, who questioned: “So you are asking us to second guess the jury?” That was the pivotal moment as interpreted by our attorneys. It signaled where that justice stood; it was not countered by any other justice, and it was not favorable to the plaintiffs.  

Peter Langrock, our lead attorney, gave the oral arguments for the defendants (us). He spent but something like two minutes on the arguments made by the plaintiff’s attorney. He spent so little time rebutting the plaintiff arguments, as he later explained, because his tracking of the arguments and sense of where the court likely stood was that Justice Skogland’s   comment about “second guessing the jury” was a clear indication of where she stood and a likely indicator of the way the collective would decide on the central issue: to uphold the jury’s verdict (our side). Langrock then went on to argue two points of “equity.”  He argued that only we, the defendants, defended the decedent’s will, because the trustee of the trust, a bank, did not defend the trust. For this and other reasons, he argued that the trust should reimburse the attorney fees of the defendants. (If the court decides to agree with this argument, we would have our attorney fees paid by the trust, which operationally means that those funds would be subtracted from the plaintiffs’ behest since they receive a percentage of the “remainder” after the specifically designated amounts are paid to the charities.) Langrock further argued that the defendants were denied the use of their money for a period of three years at this point in time and longer when the final Supreme Court decision come in. Equity requires, Langrock argued, “making the charities whole” by providing them with standard rate the court has long ago set at 12% per annum.  Not to do so for the prevailing defendants would mean that any gain on the money held in escrow until the case is finally decided would go to the defendants as part of the “remainder.” Later, Langrock told me that he thought the likelihood of the court accepting these “equity” arguments was 50/50. However, he also told me that he had provided an opportunity for the court to break new ground and thus go down in legal history as having established a new precedent.

With the first round of arguments and questions completed, the bailiff said that the plaintiffs had four minutes some seconds remaining for the second round while the defendants had six minutes and some seconds. The plaintiffs used their whole time in rebuttal; Langrock used probably only half of his remaining time.

Six of the church representatives took up Mr. Langrock’s offer to join him for lunch. Ginny and I had the good fortune of sitting next to him. It was during lunch that I was privileged to get his analysis and perception of the justices’ responses to the arguments as indicated above. He also responded to the question: “When will we likely hear the court’s decision?” by saying it could be until the fall and that the longer it takes it more likely it is that they are thoroughly researching his equity arguments and more likely to rule on them in our favor.

As Yogi said, “It ain’t over until it’s over.”  So we will wait some more.

Please extend your thanks to the members of the church family who made the trek to Montpelier when you see them. They gave the better part of a day to the effort.

Bob Kottkamp

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