Procedure; Rule 11. Pro se sanctioned for serial baseless filings.

Zorn v. Smith, 2011 VT 10 (Burgess, J.) (Dooley, J., joined by Justice Johnson, dissents.)

Plaintiff Robert E. Zorn appeals pro se from an order prohibiting him from filing any additional documents with the Rutland Superior Court clerk except through a licensed attorney.  We affirm the trial court’s order except in two respects.  First, the order is clarified to limit its pleading restriction to this particular case and, second, the order is modified to permit Zorn to demonstrate financial inability, if any, to comply with the order. We affirm the trial court’s decision as fully within its discretion.

The superior court followed the procedure of Rule 11.  The court identified five filings that plainly violated Rule 11.  The filings were repetitive and unsupported by fact or law.  The reasonable expectation of the trial court, given Zorn’s habit, was that Zorn would continue to file unreasonable and wasteful motions, demands, and papers. Sanction was warranted under the rule.   The sanction imposed here was supported and reasonable under the circumstances, when limited to this case and provided that Zorn has the opportunity to prove a lack of means necessary to comply with the court’s order.

 

Justice Dooley joined by Justice Johnson dissent because the sanction upheld, even as narrowed by the majority, is the most restrictive sanction a court can impose short of an outright prohibition on future access to the court and in this case is de facto such a prohibition.  It is inconsistent with the right of access for all litigants contained in Chapter I, Article 4 of the Vermont Constitution.  It was imposed with no consideration of less restrictive alternatives, and less restrictive alternatives exist in this case. 

Family law. Guardian lacks standing to initiate a divorce proceeding.

Samis v. Samis, 2011 VT 21 (Johnson, J.)

Husband appeals the decisions of the Orleans Family Court granting divorce, distributing property, and awarding spousal maintenance after wife’s guardian filed for divorce on her behalf.  Husband argues the trial court erred in denying his motion to dismiss wife’s divorce action because her guardian lacks standing to initiate a divorce proceeding on her behalf..  We agree with husband that the lower court erred in its denial of his motion to dismiss.  Accordingly, we reverse.

A century and a half ago, we held that “the right to bring [a divorce] petition is strictly personal.”  Richardson v. Richardson, 50 Vt. 119, 121-22 (1877) (holding that because right to bring divorce petition is strictly personal, person under only financial guardianship can bring petition in own name).  We have not revisited this particular issue in modern times.

Like the majority of jurisdictions around the country, we continue to conclude that the right to end a marriage through divorce is volitional and personal such that the Legislature did not intend, through a general grant of authority, to permit it to be carried out by a guardian.   Without specific authority in 14 V.S.A. § 3069(c)(6), therefore, guardian was without power to file a divorce on wife’s behalf.

Premises liability. Owner liable for injury to worker resulting from defective ventilation system, even though occupant was in control of system and had sole duty to provide safe workplace.

Arnold v. Palmer, 2011 VT 8, ¶ 12 (mem.)

This is a wrongful death and survival action brought by the estate and survivors of a funeral director who died from cancer after exposure to formaldehyde in defendant landlords’ building. Landowners argue for summary judgment on the grounds that they lacked any duty to maintain or repair the ventilation system because they had no control over the system.  Further, they argue that it was the tenant’s duty to provide a safe workplace for its employees. We reject this claim.

Vermont landlords “may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain ‘control’ of the dangerous condition.”  Favreau v. Miller, 156 Vt. 222, 228, 591 A.2d 68, 72 (1991).  A landlord’s duty to maintain the premises is not the same as an employer’s duty to provide a safe workplace for its employees.  Vella, 2003 VT 108, ¶ 14.  A landlord’s duty to maintain the premises is an “independent, personal duty.”  Id.

Workers compensation exclusivity. Tort liability by label. Holding company owned by employer is not “statutory employer” of worker who died from exposure to hazardous condition on premises, because company is sued in its “capacity as landowner.”

 

Arnold v. Palmer, 2011 VT 8 (mem.) (Morse, J. (Ret.), Specially Assigned, joined by Justice Burgess joins, dissents)

This is a wrongful death and survival action brought by the estate and survivors of a funeral director who died from cancer after exposure to formaldehyde in defendants’ building. The funeral director collected workers’ compensation benefits for this injury from the funeral business.  Defendant Hanley was president and owned 95% of the shares of the funeral business, and was also  the sole member of the defendant limited liability corporation, which owned the building leased to the funeral business.     The trial court granted summary judgment for the defendant landowners, holding that plaintiffs’ exclusive remedy was the workers’ compensation award because landowners were “statutory employers” under 21 V.S.A. § 601(3) and thus immune from suit.  Because we find that landowners are not “statutory employers,” we reverse the trial court’s judgment and reinstate plaintiffs’ action.

A “statutory employer” is one who, although not the direct employer, is nevertheless the “virtual proprietor or operator of the business there carried on.”  Whether defendant landlords were the “virtual proprietors” of the funeral home business is tested by the goal of the statute “to prevent indirect employers from avoiding workers’ compensation liability by hiring out work that they would have otherwise done themselves.”  Thus the critical inquiry in turn becomes, not whether the defendant is a “statutory employer” or whether it is a “virtual proprietor” but instead, whether the type of work being carried out “is the type of work that could have been carried out by the indirect employer’s employees as part of the regular course of the business.”  Vella, 2003 VT 108, ¶ 7

Raymond Palmer and several family members owned a funeral home business, and the property where it operated, for over sixty years.  In 1992, Raymond and his wife Gertrude transferred ownership of the property to two trusts—the Raymond Palmer Trust and the Gertrude Palmer Trust—which leased the property back to the business.  In January 2002, Raymond’s daughter, defendant Pamela Hanley, acquired the business and property and continued the same lease arrangement.  Later that year, Hanley conveyed the property to a separate single member limited liability corporation of which Hanley is the sole member, which maintained the same lease agreement.  

Nothing in the record demonstrates that defendant trusts and limited liability corporations, “in their capacity as property owners,” were ever engaged in the funeral home business.  The fact that the landlord entities and the funeral home business had overlapping personnel is not dispositive.   Nor need we decide under the Vella test whether the funeral director was carrying out regular work of the defendants.  Instead we simply announce our result by saying that that defendants were sued solely “in their capacities as owners and lessor” of the property and “only in their capacities as owners and operators of a wholly separate commercial leasing business.” 

Because defendants, “in their capacities as landowners” were in no way engaged in the funeral home business, we find they are not “in their capacities as landowners” the virtual proprietors of the funeral business and thus not statutory employers.

Justice Morse, dissenting, would hold that Defendants here were decedent’s employer in all but name, and as such should be immune from suit. The goal of the statute has nothing to do with prevention of  hiring out work.  The goal is to prevent double recovery against the employer. By looking solely to the legal form of ownership the majority ignores the substance of authority and control. In fact the owners of the funeral home business and the owners of the funeral home property are “virtually” the same. Defendants are not “distinct, separately owned” entities with “no ties” to the funeral-home employer, but are indistinguishable from, and intertwined with, the funeral home in every respect save for their legal forms. The statutory word “virtual” requires us to ignore mere matters of labels and forms, in order to prevent double recovery.

Vella is distinguishable because there the “defendant [was] not in the busing business” but instead was “a commercial landlord and a distinct, separately owned corporation that leases space to Premier, but otherwise has no ties to Premier and no supervisory control or authority over Premier or its employees.”  Id. ¶ 8.  Unlike Vella, moreover, where the defendant landlord operated a commercial-leasing business entirely independent of its bus-company tenant, nothing in the record here suggests that defendants operated anything.

Defendants are simply legal shells established by the funeral-home employer to collect rent and provide certain tax advantages.  The same trustees and principals that formed and comprise defendants also run the funeral-home business and exercise complete control and authority over its operations.  They are identical in all but form and thus fully meet the definition of virtual employer.

The legal effect of the Court’s holding is to eliminate the fact-based test for determining virtual-employer status set forth in Vella and to substitute instead a shortcut to tort liability by label.  

Consumer fraud: no attorney’s fees for violation with no harm and no public rights vindicated.

Anderson v. Johnson, 2011 VT 17 (mem.)

Defendant broker appeals from a jury verdict finding it liable for violation of the Vermont Consumer Fraud Act but awarding no compensatory damages or other relief, as well as from an order granting attorney’s fees to plaintiff homebuyers. Defendant contends that the court erred in awarding attorney’s fees. We conclude that the award of attorney’s fees was erroneous in this case, where the verdict granted plaintiffs no relief, vindicated no significant legal rights, and advanced no broader policy interests.

The jury found that plaintiffs had reasonably relied on material representations by Defendant, that the representations were likely to be deceptive or misleading to the average reasonable consumer, and that they had influenced plaintiffs’ decision to enter into the contract of sale. The jury also found, however, that plaintiffs had suffered no damages from their entry into the contract, and declined to award any damages for lost value or restitution. The trial court ruled that an award of attorney’s fees is mandatory when a violation of the CFA has been found, even in the absence of actual damages. The court approved an award for $54,310.73, plus costs of $1871.80.


Despite the technical statutory violation, plaintiffs were ultimately induced to purchase nothing less than, or different from, what they thought that they were purchasing. Where no damages or other relief is awarded, or merely nominal damages are awarded, the purpose of a statutory fee-shifting provision may be served where the plaintiff has prevailed on a significant legal issue or accomplished some broader “public purpose” underlying the legislation.


The case at bar fits none of these categories. Plaintiffs claimed that Defendant was careless in providing confusing materials relating to the property’s boundaries, but their suit exposed no “lawless” or unscrupulous misconduct, much less any broader pattern of socially irresponsible behavior likely to deceive or mislead the consumer. The record at most shows that Defendant committed a mistake that was later corrected and resulted in no harm to plaintiffs. Nothing in the case suggests that the verdict will serve to deter future misconduct, educate consumers or vendors, or promote a more honest and open marketplace. Plaintiffs’ suit, in short, yielded no relief to plaintiffs, vindicated no significant legal rights, and advanced no broader public goals. That portion of the judgment awarding plaintiffs attorney’s fees is reversed.

Appeal from expunged conviction is moot.

In re Unnamed Defendant, 2011 VT 25 (mem.)

Defendant challenges his conviction for resisting arrest on the grounds that the police did not have probable cause to arrest him.  We do not address defendant’s challenge as we find it is moot.

Defendant received a six-month deferred sentence on his resisting arrest conviction.  When he complied with the probation conditions the trial court was obligated to strike the adjudication of guilt, and order expunged all records and files related to the arrest, citation, and investigation, and charge, adjudication of guilt, criminal proceedings, and probation.  Because § 7041(e) erases any record of defendant’s arrest and conviction “this Court can no longer grant effective relief.”

There are no negative collateral consequences. The mere fact that defendant was arrested once for resisting arrest without probable cause does not mean this is “capable of repetition yet evading  review.” The challenge to theconviction is moot.

Defendant’s appeal of his resisting arrest conviction is dismissed.  On remand, the Superior Court shall expunge defendant’s records and files in accordance with 13 V.S.A. § 7041(e).

Torts: implied warranty of habitability does not protect tenant’s automobile from falling ice and snow.

Weiler v. Hooshiari,  2011 VT 16 (Burgess, J.)

 Landlord appeals from a judgment in favor of his former tenant finding that landlord violated the implied warranty of habitability when heavy snow and ice fell from the roof of tenant’s residence onto her parking place, destroying her car.  We hold that the implied warranty of habitability does not protect tenant’s automobile and therefore reverse.

The warranty of habitability promises that the landlord “will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.”  9 V.S.A. § 4457 (a); Hilder, 144 Vt. at 159, 478 A.2d at 208.. No jurisdiction extends the warranty of habitability beyond essential sanitation and tenant safety. The warranty does not extend to loss of personal property.

In Favreau v. Miller, we declined to extend the implied warranty of habitability to personal injuries.  156 Vt. 222, 591 A.2d 68 (1991).  Favreau recognized that remedies at law already exist for personal injuries and that “the concepts of tort and negligence law provide the more straightforward way to describe the respective duties and liabilities of the parties.”  Id. at 229, 591 A.2d at 73.  We specifically declined to “do away” with the principles of tort-based claims for bodily injury in favor of recovery of all damages stemming from a breach of lease regardless of fault.  Id. at 230, 591 A.2d at 73.  

The precepts of Favreau are applicable here. Claims for personal injury or property damage sound in tort, typically in an action for negligent breach of a duty of care, and depend on comparative degrees of fault.  The Restatement confirms that, in addition to a breach of the implied warranty of habitability, a tenant must show the landlord “failed to exercise reasonable care to repair the condition,” a negligence standard.  Restatement (Second) of Property: Landlord and Tenant § 17.6.  

Plaintiff did not plead negligence.

Three year statute of limitations for medical malpractice applies, notwithstanding argument that cancer is a “noxious agent” with prolonged latent development.

Campbell v. Stafford , 2011 VT 11 (mem.)

The trial court concluded that plaintiff’s claim was time-barred under the three-year limitation set forth in 12 V.S.A. § 521. Plaintiff appeals the trial court’s denial of her motion for reconsideration and motion to amend.  We affirm.

 

Plaintiff filed her malpractice suit over three years of last date on which Defendant treated plaintiff without ordering additional testing or treatment for thyroid cancer.  After judgment had already been entered on statute of limitations grounds,  Plaintiff sought to amend  her complaint to allege the theory that her cancer was a noxious agent, and that the claim was actionable under 12 V.S.A. § 518..  But  this “claim” added nothing.  12 V.S.A. § 521, as opposed to 12 V.S.A. § 518(a), controls this case.

In order for 12 V.S.A. § 518(a) to apply, plaintiff’s cancer would have to be considered a “noxious agent.”  An “agent” is something that acts upon the body, causing a disease or illness such as cancer.  Though the cancer in this case may have had a prolonged development period, it was not itself a “noxious agent”. Given the failure of plaintiff’s amended complaint,  Defendants were entitled to summary judgment as a matter of law.