Justia Vermont Supreme Court Opinion Summaries

This was a case of protracted litigation between neighbors over a maple tree. The maple tree in question was about sixty-five years old and stood about sixty-five feet tall. The trunk or stem of the tree was located entirely on Bruce and Janet Alvarez's property, approximately two feet from the property line. Although the superior court considered the tree to "effectively" be on the property line, the parties agreed that the property line did not pass through the trunk of the tree, but laid to the south of the tree trunk. When the Alvarezes bought their property approximately twenty-five years ago, the tree was about one foot in diameter at the base. Approximately half of the branches and roots from the tree now cross the property boundary and encroach onto the lot belonging to Claudia Berger and Sheldon Katz. Some roots extended under the existing deck on the Berger/Katz home. For several years Berger and Katz sought to expand their home by constructing a two-story addition on the rear which would occupy roughly the same existing footprint as the house and deck at present. Berger and Katz received the necessary permits for construction of the addition. The plans for the construction of the addition to the Berger/Katz residence necessitated cutting the roots and branches that are encroaching onto their property. Efforts to amicably resolve the problem of the maple tree in light of the planned Berger/Katz addition were unsuccessful. In 2013, when Berger and Katz considered taking unilateral action to trim the tree's roots and branches, the Alvarezes filed for and received a temporary injunction, and later a permanent one. The superior court found it more likely than not that removal of 50% of the tree's roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The final injunction barred the trimming of more than 25% of the roots and branches of the tree. The trial court granted the temporary injunction, employing what it dubbed as the "urban-tree rule." Under the "urban-tree rule," as described by the trial court, trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. Although the judge hearing the permanent injunction questioned the validity of the "urban-tree rule," he felt it improper to apply a different legal analysis, relying upon it as the "law of the case." Berger and Katz argued on appeal of the superior court error that the court erred in granting an injunction because the common law allowed for an absolute right of a landowner to trim intruding branches and roots regardless of the impact on the offending tree; because there was no showing that the cutting would cause irreparable harm sufficient to support an injunction; and because injunctive relief resulted in a taking of their property without compensation. The Supreme Court reaffirmed Vermont's long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree, and vacated the injunction on that basis. As such, the Court did not reach appellants' other arguments. View "Alvarez v. Katz" on Justia Law

Plaintiffs Heidi and James Glassford appealed a superior court decision denying their motion for summary judgment and granting it to defendant Dufresne & Associates, P.C. on plaintiffs' claims of negligent misrepresentation and violation of the Vermont Consumer Protection Act (CPA). Plaintiffs were homeowners who purchased their home direct from the builder, D&L Homes by Design, LLC (D&L). D&L hired defendant to certify that the on-site mound sewage disposal system constructed for the home satisfied state permitting requirements. On April 19, 2005, the Vermont Agency of Natural Resources issued a Wastewater System and Potable Water Supply Permit for construction of the sewage disposal system on the property, subject to receiving a certification pursuant to 10 V.S.A 1973(e). On October 20, 2005, defendant's employee sent the certification required by the statute. On December 20, 2005, plaintiffs signed a purchase-and-sale agreement to purchase the home from D&L. Although the seller represented that the home and property had received all the necessary permits, plaintiffs never saw the certificate or the letter from the Agency stating that the certification requirement was satisfied. Sometime thereafter, plaintiffs hired an attorney in connection with the closing. On January 13, just prior, plaintiffs' attorney prepared a certificate of title that noted the wastewater and water supply permit. In February 2006, the sewage disposal system failed. In November 2008, plaintiffs hired defendant to investigate the system's failure because they knew defendant had inspected the system prior to their purchase. Defendant prepared a report stating that he had "completed the original" inspection in 2005 and found the system had been installed according to the permitted design. Plaintiffs received other opinions about the disposal system's failure both before and after hiring defendant to inspect the system. Plaintiffs filed a complaint in superior court alleging pecuniary losses from defendant's failure to properly inspect the sewage disposal system and subsequent misrepresentation about the construction of the system in the certification to the Agency. Upon review of the superior court decision, the Supreme Court found that the completion and filing of defendant's certificate was a prerequisite to D&L's ability to sell the home, the certificate was unrelated to the sale. The law required that it be sent only to the government agency that issued the permit. Furthermore, there was no allegation that D&L used the certificate as part of its sales pitch, and no allegation that defendant had any part in the sales. The standard for CPA liability required that a person be directly involved in the transaction that gave rise to the claimed liability. That standard was not met here. Accordingly, the Court affirmed the superior court's decision. View "Glassford v. Dufresne & Associates, P.C." on Justia Law

At issue in this case was a dispute between a residential subdivision property owners' association and the owner of commercial property both in and adjacent to the subdivision over access to property over a subdivision roadway. It also involved the conduct of the property owners' association. Defendant, Sunne Village Development Property Owners Association (POA), appealed the trial court's judgment that it created a nuisance affecting the commercial landowner; the court's calculation of compensatory damages arising from the nuisance; and the court's award of punitive damages and attorney's fees. Plaintiffs, Post and Beam Equities Group, LLC, and Post and Beam of Mt. Snow, LLC (collectively "P&B"), cross-appealed, challenging the trial court's conclusion that its deeded easement over the subdivision's road did not extend to its patrons' use for access to its restaurants. After review, the Supreme Court affirmed with respect to the judgment for nuisance and the award of punitive damages and attorney's fees, but reversed the award of compensatory damages to P&B. With respect to the cross-appeal, the Supreme Court affirmed the trial court's judgment relating to interpretation of the deeded easement. View "Post & Beam Equity Group, LLC v. Sunne Village Development Property Owners Ass'n" on Justia Law

Owner and developer, Stratton Corporation and Intrawest Stratton Development Corporation, sued a condominium construction project's general contractor Engelberth Construction, Inc., who in turn filed a third-party claim against subcontractor Evergreen Roofing Company. A jury found that Engelberth Construction breached its contract with developer and breached an express warranty, which proximately caused developer to sustain damages related to roof repairs. The jury also found that Evergreen Roofing breached its subcontract with Engelberth Construction, and that Evergreen Roofing was obligated to indemnify Engelberth Construction. Evergreen Roofing appealed, arguing that the court erred in denying a pretrial motion for summary judgment filed by Engelberth Construction on various issues, including the scope of the contract between developer and Engelberth Construction and whether proof of non-insurance or lack of availability of insurance coverage was a prerequisite to developer's recovery against Engelberth. The Supreme Court affirmed, finding that Evergreen Roofing failed to preserve its argument. View "Stratton Corp. v. Engleberth Construction, Inc." on Justia Law

This appeal arose out of a decision by the Town of Middlebury Development Review Board (DRB) to approve appellee Jolley Associates, LLC's application for a Planned Unit Development (PUD) to add a car wash to an existing gas station and convenience store within the Town limits. Appellant MDY Taxes, Inc. operated an H&R Block tax franchise in property rented in a shopping center adjacent to the Jolley lot. Appellant Village Car Wash, Inc. operated a car wash located approximately one-quarter of a mile from the Jolley lot. Appellants did not participate in the DRB proceeding, but sought to challenge the approval of the PUD through an appeal to the Environmental Division of the Superior Court. The environmental court dismissed the appeal for lack of jurisdiction. The court concluded that appellants did not have standing, to appeal the DRB decision because they had not participated in the proceedings before the DRB as required by statute, and because they did not meet any of the exceptions to that statutory requirement. On appeal, appellants argued that a procedural defect prevented them from appearing before the DRB, and that it would be manifestly unjust if they are not afforded party status to appeal. Finding no reversible error, the Supreme Court affirmed. View "In re Appeal of MDY Taxes, Inc., & Village Car Wash, Inc." on Justia Law

Appellant Horizon Heights Condominium Association sought to recover from joint condominium owners Ronald and Joan Dusablon the monthly dues that accrued after the Dusablons redeemed their foreclosed-upon condominium. The issue this case presented for the Supreme Court's review centered on whether a condominium owners' association could collect the monthly assessments that accrued in between the end of the date range stated in an agreement that formed the basis of a foreclosure judgment as between those parties, and the date on which that judgment was entered. The Court held that the association could recover these debts because they were not covered by a prior agreement or its attendant foreclosure judgment. Owners who continue to live in their condominiums and reap the association's services may not use an old foreclosure decree as a shield to avoid paying subsequent monthly assessments. View "Citimortgage, Inc. v. Dusablon & Horizon Heights Cond. Ass'n." on Justia Law

Tenant was the successor lessee to a thirty-year lease on a commercial property in Brattleboro. The lease was executed in 1987. The lease established a basic annual rent of $26,500 in paragraph 8, and then set forth how the rent would increase in subsequent years. Pursuant to the rent-increase provision, each year landlords calculated the annual rent increase and sent a notice to tenant. The increase was calculated as the percentage change in the CPI from the previous year to the current year multiplied by the previous year's rent. This increase was then added to the prior year's rent to arrive at the new annual rent. In March 2007, tenant assumed the lease. From 2008 to 2012, landlords sent rent-increase notices and tenant paid rent annually adjusted for increases, calculated according to this method, without objection. In 2013, landlords sent the annual rent increase notice to tenants. The notice reflected the new 2013 rent as $54,060. Tenant objected to the amount of rent and the calculation method for rental increases. The parties were unable to resolve their dispute, and tenant filed an action seeking both a declaration that its interpretation of the lease language was correct and damages for overpaid rent. Tenant appealed the court's order granting summary judgment in favor of defendant landlords on the parties' dispute concerning a rental-increase provision of the lease. Tenant argued on appeal that the court erred in using extrinsic evidence to interpret a portion of the lease tenant believed was unambiguous, and in reaching an inequitable result. Finding no reversible error, the Supreme Court affirmed. View "B&C Management Vermont, Inc. v. John, Ringey & Beck" on Justia Law

Plaintiffs appealed the grant of summary judgment in favor of defendant realtor who represented the seller in the sale of an inn. Plaintiffs argued that the trial court erred in concluding that defendant's alleged misrepresentation and omission were immaterial as a matter of law. Defendant Barbara Walowit Realty, Inc. was the listing agent for the inn. The prior-prospective purchaser claims she told defendant during their conversation that she had witnessed flooding in the parking lot and had learned of "major problems with the roof and that there was a possibility of collapse." Based on statements made by defendant, and a report prepared by the seller with regard to the condition of the inn, plainitffs entered into a purchase-and-sale agreement with the seller in December 2007. The agreement contained an inspection contingency. At the recommendation of defendant, plaintiffs then hired engineers to perform a pre-purchase structural inspection of the property, and received an inspection report in late January 2008. The sale closed in May 2008. In September, after encountering various problems relating to the condition of the inn, plaintiffs sued defendant for negligence and consumer fraud for defendant's alleged misrepresentations and omissions concerning the condition of the inn. Plaintiffs and defendant filed cross-motions for summary judgment. On the claim of negligence, the trial court granted summary judgment to defendant. As to the claim of consumer fraud, the court considered, among other things, defendant's alleged failure to disclose the contents of her conversation with the prior-prospective purchaser and to disclose the estimate of roof repair costs that was in her files. The court concluded that the statements from the prior-prospective purchaser were "simply too vague and foundationless to give rise to knowledge of specific material facts that [defendant] would have a duty to disclose" under the Consumer Fraud Act. The court further concluded that defendant's failure to disclose the roof-repair estimate was not a material omission because plaintiffs "already knew the roof needed repairs" from the engineer's report, and disclosure "would have left them in the same position in which the report placed them; needing to make further inquiry." Thus, the court concluded that the estimate "cannot be considered material as a matter of law," and granted judgment to defendant. Plaintiffs appealed. Finding no reversible error in the trial court's decision with regard to the consumer protection claim, the Vermont Supreme Court affirmed. View "PH West Dover Property, LLC. v. Lalancette Engineers" on Justia Law

The parties were adjoining property owners in the Town of Brandon. Michael and Jirina Obolensky owned forty acres of land, on which they operated a bed-and-breakfast in a large Victorian house located at the lower eastern end of the property. Although not directly visible from their house, there was a beautiful view of the mountains from the highest part of the land, accessible by walking from the house uphill through a field. The adjoining property owners were Robert and Sandra Trombley, who purchased 3.7 acres of land, and shortly after purchasing their parcel, built a home on the lot. The Trombleys' lot was at the top of the rise, adjacent to the Obolenskys' field; the Trombleys had a direct view of the mountains. Soon after the Trombleys built their home, the Obolenskys commissioned a surveyor to conduct a boundary survey. In fall 2007, Mrs. Obolensky placed "no trespassing" signs on a location that she believed (based on the survey) was within her lot. The signs were placed at a location eight feet within an area also claimed by the Trombleys, who had mowed the lawn in the area. A dispute followed, culminating in a call to the police. The police permitted Mr. Trombley to remove the signs that the Obolenskys had placed on the lawn. The Obolenskys subsequently filed suit to determine the boundary, and also raised claims of trespass. The superior court issued an order resolving the underlying case based on the parties' stipulation. Among other things, the stipulated order: (1) established an agreed-upon boundary line based on a survey done by the Trombleys' surveyor; (2) called for an independent surveyor to mark the boundary corners; and (3) provided that the parties "shall each be entitled to erect and maintain any fence allowed by law." The Oblenskys appealed the superior court's order requiring them to alter what the court called a "spite fence" on the Trombleys' land, and challenged the court's judgment concerning its claims of trespass. Finding no reversible error in the superior court's judgment, the Supreme Court affirmed. View "Obolensky v. Trombley" on Justia Law

Plaintiff Birchwood Land Company appealed a Superior Court decision denying Birchwood's motion for attachment and granting defendant Judith Krizan's motion to dismiss for failure to state a claim. Birchwood's complaint alleged that Krizan was unjustly enriched by Birchwood's construction of an access road and other infrastructure to her property such that she was able to develop the property without contributing to the cost of the improvements. Upon review, the Supreme Court agreed that the complaint failed to state a claim upon which relief can be granted and affirmed. View "Birchwood Land Company, Inc. v. Krizan" on Justia Law