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Sawyer v. Robson (2005-372)
2006 VT 136
[Filed 22-Dec-2006]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
2006 VT 136
No. 2005-372
Samantha Sawyer Supreme Court
On Appeal from
v. Lamoille Superior Court
Bruce Robson and Antonio Latona May Term, 2006
Howard E. Van Benthuysen, J.
Jean L. Murray, Vermont Legal Aid, Inc., Montpelier, for
Plaintiff-Appellee/Cross-Appellant.
Brice C. Simon of Olson & Simon, PLC, Stowe, for Defendants-Appellants.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess (FN1), JJ.
1. SKOGLUND, J. Landlords Bruce Robson and Antonio Latona
appeal the superior court's decision granting tenant Samantha Sawyer's
motion for a new trial based on the court's conclusion that the jury had
returned an inconsistent verdict. Tenant cross-appeals the superior
court's decision granting landlords' motion to dismiss tenant's claim
asserted under the Consumer Fraud Act and its denial of her motion for a
directed verdict. We affirm in part and reverse in part.
2. The following facts are undisputed. In 2003, Latona
purchased a mobile home for $900 and placed it on Robson's land. Latona
began renting the mobile home to tenant on September 1, 2004, for $500 per
month. The rental agreement provided that if tenant made twelve on-time
payments (i.e., paid a total of $6000 in rent), she would own the home. By
January 2005, tenant had paid rent late at least once. In February 2005,
Latona and tenant argued about her rent payments, and Latona threatened
eviction. In March 2005, Robson-who lived next door to the property on
which the mobile home was located-told Latona that tenant had not been at
the property on a consistent basis for approximately one month. Latona
made an effort to telephone tenant but was not able to reach her. Robson
and Latona made a plan for Latona to go to the mobile home and remove
tenant's belongings. On March 23, 2005, Latona went to tenant's property
and entered the mobile home. Latona testified that when he entered the
mobile home, a window was broken and all of tenant's electronic equipment
was missing. Latona removed tenant's remaining belongings and changed the
lock. He placed those belongings in storage. Tenant returned to the
mobile home on March 26, 2005, and contacted the police after seeing that
her belongings were missing. After tenant made various efforts to recover
her belongings, Latona gave tenant access to the storage unit on April 13,
2005.
3. Tenant filed this action, alleging illegal eviction, breach
of the covenant of quiet enjoyment, intentional infliction of emotional
distress, breach of the warranty of habitability, violation of the Consumer
Fraud Act (FN2), and violation of the Landlord-Tenant Act.(FN3) A jury
trial was held. At trial, tenant presented evidence of her agreements with
Latona and Robson; her rent payments (tenant admitted that some payments
were late); the extent to which she was present at or absent from the
mobile home; the state of the mobile home and her possessions on the last
day she was on the premises before Latona entered; and the state of the
mobile home and her possessions after Latona had been inside. Tenant
presented the testimony of the police officer that tenant had contacted
after she discovered that her possessions were no longer in the mobile
home. The police officer described his conversation with Robson about
tenant recovering her belongings, and the fact that tenant had to obtain a
court order before she was able to access her belongings.
4. At the close of tenant's evidence, landlords presented a
number of motions, including for judgment as a matter of law on tenant's
claim under the Consumer Fraud Act. The superior court granted judgment in
favor of landlords on the claim, concluding that, although the CFA can be
applied to landlord-tenant transactions generally, tenant had nonetheless
offered no evidence that landlords were "covered persons" under the Act.
The superior court determined that tenant was required to prove that
landlords were sellers as defined under the CFA-in this case, persons
regularly and principally engaged in the business of renting property to
consumers-and had not presented any evidence in support of this
requirement. See 9 V.S.A. 2451a(c) (defining term "seller" for purposes
of CFA).
5. Landlords next presented their evidence, which tracked the
position set forth in their opening statement. There they argued that they
had not violated landlord-tenant law because plaintiff had already
abandoned the mobile home at the time Latona entered and removed her
belongings. Landlords presented evidence that tenant was gone from the
mobile home for thirty-two to thirty-three days in a row; Latona tried to
reach her by telephone at the mobile home but was unable to; Latona went to
the home with the intention and plan of removing her belongings, which he
had discussed with Robson; Latona found the window broken and tenant's
electronic equipment missing when he entered the mobile home; and he
removed tenant's other personal belongings, placed them in storage, and
changed the lock on the mobile home. With regard to these actions, Latona
testified, "I was advised that it was an abandoned dwelling, and I was
doing what the law states in the book under abandoned dwellings."
Landlords also presented the theory that they did not deny plaintiff access
to certain of her possessions-i.e., valuable items such as televisions and
a DVD player-because those items had been stolen by whoever had broken into
the trailer by breaking the window. Landlords did not deny that they had
changed the lock on the mobile home and that they had taken tenant's
personal belongings and put them in storage; nor did they contest that
tenant had to obtain a court order to access her belongings in storage. In
fact, Robson conceded that he told tenant that she would have to get a
lawyer to get her things back.
6. At the close of landlords' evidence, tenant moved for a
directed verdict on landlords' defense that tenant had abandoned the home
such that landlords were permitted to enter it without her consent. The
superior court denied the motion, concluding that the evidence was mixed on
the point and that a reasonable jury could find in favor of either party on
the issue. The jury was charged and given a set of interrogatories drafted
by the parties through which to render the verdict.
7. After deliberations, the jury returned a verdict in favor of
landlords. On the special verdict form returned by the jury, however, the
jury indicated that while it did not find that landlords had illegally
evicted tenant, neither did they find that tenant had abandoned the mobile
home such that entrance onto the premises by landlords would be
permissible. Tenant moved for a new trial, arguing that it was
inconsistent for the jury to find for landlords when the jury had also
rejected landlords' only defense: the allegation that tenant had abandoned
the property before Latona entered the mobile home on March 23, 2005. The
superior court granted the motion, applying Vermont Rule of Civil Procedure
49(b), which permits the court to order a new trial when answers to
interrogatories in a special verdict form create an inconsistency.
Landlords filed this appeal.
I.
8. On appeal, landlords argue that the jury's answers to the
special interrogatories can be reconciled and that the superior court erred
in granting a new trial. We review the superior court's decision to grant
a new trial under Rule 49(b) for an abuse of discretion. Johnson v. United
Postal Service, 2006 VT 57 10, ___ Vt. ___, 904 A.2d 1089 (mem.).(FN4)
The parties' positions can be summarized as follows. Tenant argues--and the
superior court agreed--that, because landlords' only defense against the
claim of illegal eviction was their assertion that tenant had abandoned her
property prior to March 23, 2005, it was inconsistent for the jury to find
that tenant had not abandoned the property and also that landlords were not
liable for illegal eviction. Landlords argue that the jury could have
found that the claim of illegal eviction failed for any number of reasons,
including a failure of proof on the elements of the claim, and that the
jury's verdict should be accepted as submitted.
9. The jury was instructed as follows on the law of illegal
eviction and the defense of abandonment (FN5):
Vermont law prohibits a landlord from directly or indirectly
denying a tenant access to any possession of the tenant['s]
rented or leased premises or property, except through proper
judicial process.
. . . .
[I]n some instances, a landlord may enter a leased premises
when three criteria are met showing abandonment by the
tenant.
Number one, if there are circumstances that would lead a
reasonable person to believe that the leased premises are no
longer occupied by the tenant[] as his or her full-time
residence.
And, number two, the rent is not current.
And, number three, the landlord has made reasonable efforts
to ascertain the tenant's intention.
. . . .
If all three of the criteria have been proven by the evidence
in this case, then you may find that the tenant did legally
abandon the premises. If, however, any one or two of these
factors have not been proven, then you may not find that the
plaintiff abandoned this trailer.
. . . .
If, however, you find the abandonment criteria have not been
met and the defendants denied plaintiff access to the mobile
home or her property therein, then you may find that the
defendants illegally evicted the plaintiff, and they may be
liable for damages incurred as a result of the illegal
eviction.
Landlords argue that the jury could have found, as an alternative, that
tenant failed to prove the positive elements of her claim-in particular,
that landlords denied her access to the mobile home or her possessions.
This theory is simply untenable in light of landlords' position at trial
and the state of the evidence. In short, landlords conceded that they
entered tenant's home, removed her personal belongings, placed them in
storage until tenant obtained a court order, and changed the locks on the
mobile home. Given these admissions, the jury's findings that tenant had
not abandoned the property but also that landlords had not committed an
illegal eviction are inconsistent, and the superior court did not abuse its
discretion in ordering a new trial. See V.R.C.P. 49(b) (requiring either a
new trial or further deliberation by jury where answers to special verdict
interrogatories are inconsistent); Prouty, 143 Vt. at 454, 470 A.2d at 1155
(noting that Rule 49(b) provides trial court with explicit options when
jury returns inconsistent verdict).
II.
10. In her cross-appeal, tenant argues that the superior court
erred in granting landlords' motion for judgment as a matter of law on
tenant's claim under the Vermont Consumer Fraud Act. Tenant argued that
landlords had acted deceptively by structuring the rental as an installment
purchase of the property "as is," thus relieving landlords of their duties
to maintain a habitable premises. Tenant also argued that landlords
generally abused and harassed her. In ruling on the motion, the superior
court acknowledged that a jury could find that landlords had engaged in
deceptive practices, and that the Act applied to landlord-tenant
transactions as a general proposition.(FN6) See L'Esperance v. Benware,
2003 VT 43, 14, 175 Vt. 292, 830 A.2d 675 (recognizing that landlord may
be held liable under Vermont Consumer Fraud Act). Nonetheless, the court
concluded that tenant was required to prove that landlords were "sellers"
as defined by the Act: persons "regularly and principally engaged in a
business of selling goods or services to consumers." 9 V.S.A. 2451a(c).
The superior court further concluded that there was no evidence upon which
a reasonable jury could conclude that tenant had proved this element of her
claim. The court's interpretation of the CFA is a legal question which we
review de novo. Human Rights Comm'n v. Benevolent & Protective Order of
Elks, 2003 VT 104, 13, 176 Vt. 125, 839 A.2d 576.
11. The superior court's reasoning is undermined by the plain
language of the CFA, as well as our case law interpreting the Act. The
"central provision" of the Act makes "[u]nfair methods of competition in
commerce, and unfair or deceptive acts or practices in commerce, . . .
unlawful." Elkins v. Microsoft Corp., 174 Vt. 328, 330, 817 A.2d 9, 12
(2002) (quoting 9 V.S.A. 2453(a)). The CFA allows this prohibition to be
enforced as follows:
Any consumer who . . . sustains damages or injury as a result
of any false or fraudulent representations or practices
prohibited by section 2453 of this title . . . may sue for
appropriate equitable relief and may sue and recover from the
seller, solicitor or other violator the amount of his damages
. . . .
9 V.S.A. 2461(b).(FN7) It is true that, while the CFA defines the term
"seller," it does not define the terms "solicitor" or "other violator."
Carter v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998). The
significance of this omission, however, is simply that we afford those
undefined terms their plain meaning.
12. This is the approach we took in Elkins. There we held that
"other violator" was "a broad term" encompassing defendants in that case
who were not "sellers" of "goods or services" under the statutory
definitions of those terms. 174 Vt. at 331-32, 817 A.2d at 13. The
specific issue in that case was whether a consumer could sue an "indirect
seller" under the CFA-for example, the manufacturer of a product that was
sold wholesale to a third party who then sold the product to the consumer.
We determined that under the plain meaning of the statutory language, there
was no privity requirement-that is, no requirement that the defendant sold
goods or services directly to the plaintiff. Id. We concluded that
attributing a broad scope to "[t]he plain meaning of the ["other violator"]
language" was supported by "the express legislative intent behind the
statute to 'protect the public' against 'unfair or deceptive acts or
practices' and to 'encourage fair and honest competition.' " Id. at 331,
817 A.2d at 13 (quoting 9 V.S.A. 2451) (further citations omitted). The
plain meaning of "other violator" is anyone engaged in an unfair or
deceptive commercial practice in violation of the CFA's prohibition on such
activity. Stated another way, our focus in determining applicability of
the CFA is the nature of the alleged violator's activities, not whether the
violator falls into a defined statutory category.
13. This interpretation is supported by the express purpose of
the CFA: "to 'protect the public' against 'unfair or deceptive acts or
practices' and to 'encourage fair and honest competition.' " Id. at 331,
817 A.2d at 13 (quoting 9 V.S.A. 2451) (further citations omitted). "In
light of this purpose, this Court has repeatedly held that the VCFA is
'remedial in nature' and therefore must be construed 'liberally so as to
furnish all the remedy and all the purposes intended.' " Id. (citations
omitted). As we emphasized in Elkins, "[t]he Legislature clearly intended
the VCFA to have as broad a reach as possible in order to best protect
consumers against unfair trade practices." Id. Construing the CFA
liberally, as we must, there is no basis for categorically excluding
landlords in this case from the range of potential defendants under the
CFA, given the court's conclusion that there was evidence landlords had
engaged in unfair and deceptive commercial practices. The superior court
should have permitted the claim to proceed.
III.
14. Finally, tenant also challenges the superior court's
decision not to grant a directed verdict on the issue of abandonment.
Specifically, tenant asserts that even if landlords presented evidence that
she no longer occupied that mobile home as a full-time residence and that
her rent payments were not current, landlords did not provide adequate
support for the third element of the abandonment defense: that they made a
reasonable effort to determine tenant's intentions before entering the
mobile home. See 9 V.S.A. 4462(a) (setting forth elements of defense of
abandonment). In reviewing a trial court's decision on a motion for
directed verdict, we view the evidence in the light most favorable to the
nonmoving party and exclude the effect of all modifying evidence. Hunter
Broad., Inc. v. City of Burlington, 164 Vt. 391, 393, 670 A.2d 836, 838
(1995). At trial, landlords testified that they attempted to reach tenant
by telephone before entering the mobile home. Viewing this evidence in the
light most favorable to landlords, we cannot conclude that "there is no
legally sufficient evidentiary basis for a reasonable jury to find for
[landlords] on that issue." V.R.C.P. 50(a)(1).
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this decision.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Justices Burgess sat for oral argument but did not participate in
this decision.
FN2. Specifically, 9 V.S.A. 2453(a) prohibits "[u]nfair methods of
competition in commerce, and unfair or deceptive acts or practices in
commerce."
FN3. Specifically, 9 V.S.A. 4463 prohibits a landlord from denying a tenant
access to and possession of the leased premises and tenant's personal
property in the absence of judicial process.
FN4. Landlords argue that our review is de novo, citing Prouty v.
Manchester Motors, Inc., 143 Vt. 449, 453, 470 A.2d 1152, 1154 (1983). The
cited passage, however, is dicta. Furthermore, it is unclear whether the
statement in Prouty that "the issue in this case is one of law" refers to
the trial court's decision denying a new trial or its decision entering
judgment for the plaintiffs. Johnson is the more recent and more clear
precedent, and is consistent with our application of the abuse of
discretion standard to the decision whether to grant a new trial under Rule
59.
FN5. Neither tenant nor landlords objected to the jury instructions at the
time or challenge them on appeal. Further, the instructions accurately
state the law as codified in 9 V.S.A. 4462-4463.
FN6. The superior court did not analyze or rule on whether landlords had
engaged in deceptive practices or whether any such practices occurred "in
commerce" under the CFA. Rather, the court noted in passing that there was
some evidence of deceptive practices, but ultimately focused on the
definition of "seller" under the statute as the basis for granting summary
judgment on the claim. Because the superior court did not address the
other elements of a CFA claim, we need not decide today how these elements
should be applied in the landlord-tenant context. Our holding is limited
to the conclusion that a plaintiff need not prove that a defendant is a
"seller" to maintain a claim under the CFA.
FN7. The legislative history of the private-enforcement provision
demonstrates that the scope of potential plaintiffs and defendants under
the CFA was deliberately broadened over time. Originally, the CFA's
prohibitions could be enforced only by the Attorney General. See 1967, No.
132, 1. In 1969, however, the Act was amended to permit a private cause
of action, thus allowing individual consumers to sue when they are damaged
by deceptive practices. See 1969, No. 45, 7. The language was further
broadened in 1973, when the private enforcement provision-which originally
limited the range of possible defendants to a "seller" or "solicitor"-was
amended to allow consumers to sue "other violators" as well. See 1973, No.
110, 5. |