Commercial lease. Defective eviction notice means “wrongful eviction” and forfeiture of right to rent or liquidated damages.

Vermont Small Business Development Corp. v. Fifth Son Corp., 2013 VT 7 (Dooley, J.)
Landlord appeals a partial summary judgment order concluding that his eviction of tenant from a property was wrongful, as well as the trial court’s ruling on a post-trial motion that tenant was not liable to landlord for rent that accrued post-eviction. Because landlord’s notice of default was defective, and because a wrongful eviction releases a tenant from liability for rent accrued post-eviction, we affirm.

Our law is clear on the necessity of strict compliance with terms in a lease in order to effectuate an eviction: The time, mode and manner of notice of termination must conform to the agreement. With respect residential leases, we require “punctilious compliance with all statutory eviction procedures, including notice provisions. There is no reason to require less “punctilious compliance” with terms of a lease providing for notice in the nonresidential context.

The notice of default was defective in two ways. First, although the terms of the restaurant lease clearly require lessor to “specify[] the occurrence giving rise to [the] Event of Default,” it failed to do so. Second, although the restaurant lease provides that the notice must “stat[e] that this Agreement and terms hereby demised shall expire and terminate on the date specified in such notice,” lessor did not specify any such date. (Emphasis added.) The lease states that the date of termination must be “at least twenty (20) days after the giving of such notice.” (Emphasis added.) We cannot read that language as setting the date of termination at twenty days after the date of the notice.

Because the notice of termination of the restaurant lease was defective, we affirm the trial court’s finding on summary judgment that lessor’s eviction of lessee from the restaurant was wrongful.

Because lessor did not properly terminate the tenancy, we uphold the trial court decision that lessor cannot collect post-eviction rent, whether labeled as such or as liquidated damages.

SCOVT NOTE: In Panagiotidis v  Galanis, 2015 VT 134 the Court refused to extend the requirement of punctiolous compliance to the manner of notice, as opposed to the contents, where the manner of notice given is actually more certain.

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Appeals. Zoning finality. Rules suspended to confer appellate jursidiction over interlocutory appeal from order remanding zoning case to DRB. Stowe Club test does not preclude amended permit, because changing lot designated for required hotel did not require change in permit condition.

In re Stowe Highlands Merger/Subdivision Application, 2013 VT 4 (Burgess, J.) 

This appeal stems from Stowe Highlands’ application to amend its PUD by subdividing and then merging certain lots, including one designated for a hotel. The DRB concluded that the amendment amounted to a change in the permit conditions and that Stowe Highlands had not demonstrated an unanticipated change in factual circumstances beyond its control. The Environmental Division reversed, concluding that the application required no permit condition change. We affirm.

The Environmental Division’s order was not a final judgment, because the court remanded the case back to the DRB to conduct a merits review. See In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding that environmental court’s decision remanding case to zoning board for review was not a final judgment). Nonetheless, no party moved to dismiss the appeal for lack of a final judgment and the case has been fully briefed and oral argument presented. The appellate rules can be suspended as a matter of discretion in the interest of judicial economy, and we do so here and decide the issue presented. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.) (allowing suspension of appellate rules when, as here, dismissal of the appeal “most likely would result in an appeal after final judgment”); see V.R.A.P. 2.

The DRB applied the Stowe Club test to evaluate whether to grant such a change. Under this test, the Board examines whether a permit modification is justified by: changes in factual or regulatory circumstances beyond the permittee’s control, changes in the project’s construction or operation not reasonably foreseeable at the time the permit was issued, or changes in technology. In re Stowe Club Highlands, 166 Vt. at 38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7, 13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club test).

The court was correct in its assessment that no evidence supported a reading of the permit to condition development of Parcel 1 to nothing beyond a hotel or inn. The application proposed to decrease the lot size for the hotel, but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. Because the proposed amendment did not require a change in a permit condition, the Stowe Club test was not applicable, and the Environmental Division’s reversal and remand to the DRB for further review of the application was proper.

Biological rights. Where putative father’s claim is based on biology alone, Vt law constitutionally precludes a second parentage action after final judgment in first parentage action to which the putative father was not party.

Columbia v. Lawton, 2013 VT 2 (Robinson, J.)  

This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child’s parents. We conclude that Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent and that constitutional considerations do not require the court in this case to entertain the second parentage case.

In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. He did not seek to establish a legal tie to the minor child until more than two years after the child’s birth, and never had any significant custodial, personal, or financial relationship with the minor child despite ample opportunity to formally declare and pursue his assertion of parentage.  After the child's birth he wrote  mother from jail requesting photos of the child, but the request for pictures, without accompanying efforts to take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights was not enough. When he did step forward, more than two years after the child's birth, he could not claim any indicia of parenthood other than, possibly, a genetic connection. Accordingly, we affirm the trial court’s decision denying plaintiff’s motion for genetic testing and dismissing his complaint for establishment of parentage.

Unclean hands defense precludes constructive trust as remedy for unjust enrichment claims based on an unmarried cohabitant’s investment in property owned by the other.

Shattuck v. Peck, 2013 VT 1 (Burgess, J.)  (Robinson, J., dissenting.)

Defendant appeals from a superior court judgment granting plaintiff  a writ of possession for the parties’ former residence in Cavendish and denying defendant’s counterclaim for an equitable interest in the Cavendish property and another former residence in Springfield. We affirm. 

A court may apply unclean hands doctrine, even where not set up as defense, where “the unconscionable character of a transaction” is plain. The property transfers were intended to circumvent governmental regulations that jeopardized defendants continued eligibility to receive Social Security disability benefits. Although the trial court here did not rule on this issue, there is no factual dispute concerning the intended purpose of the property transfers. The undisputed evidence demonstrates that defendant lacked the “clean hands” necessary for an award of equitable relief. Accordingly, we affirm the judgment on that basis. 

ROBINSON, J., dissenting. These parties were involved in a long-term, committed, intimate partnership. Defendant brought into the relationship substantial equity in the Springfield property and mobile home, and the trial court expressly found that she made a significant contribution to the purchase of the second parcel in Cavendish. Now that the parties’ relationship has ended with plaintiff holding legal title to both properties, the majority declines to address defendant’s claims for equitable relief on the ground that she has “unclean hands.” Because the majority relies solely on its own findings that defendant had a “guilty mind” when transferring her interests in the properties to plaintiff, without consideration of whether defendant actually benefitted from the arrangement, I respectfully dissent.

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