Vladyka v. Marsh, No. 266-4-09 Rdcv (Cohen, J., Mar. 31, 2010)

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                                                STATE OF VERMONT
                                                 RUTLAND COUNTY

                                                                                )
JAMES VLADYKA,                                                                  )          Rutland Superior Court
                                                                                )          Docket No. 266-4-09 Rdcv
                                  Plaintiff,                                    )
                                                                                )
v.                                                                              )
                                                                                )
AUDREY MARSH,                                                                   )
THOMAS BEZIO,                                                                   )
                                                                                )
                                  Defendants,                                   )


                 FINDINGS OF FACT, CONLUSIONS OF LAW, and ORDER

           Plaintiff James Vladyka seeks to evict defendants Audrey Marsh and Thomas

Bezio from the mobile home and land he rents to them because of late payment of rent

and accumulation of garbage on the premises. He also seeks back rent and interest.

Defendants have counterclaimed, alleging a breach of the warranty of habitability and

retaliatory eviction stemming from the defendants’ complaint to state officials about a

sewage problem. They seek compensatory and punitive damages. A trial was held on

August 5, 2009. Plaintiff was represented by John J. Welch, Esq. Defendants were

represented by Kevin M. Volz, Esq.

                                                 FINDINGS OF FACT

(1)        James Vladyka is the owner of land and a mobile home located at [address
           redacted], Benson, Vermont.

(2)        In September 2006, Audrey Marsh and Thomas Bezio began renting the home
           from Mr. Vladyka.

(3)        Ms. Marsh has children who live in the household.

(4)        Ms. Marsh and Mr. Bezio pay $495.00 a month for rent.
(5)    At the time Ms. Marsh and Mr. Bezio moved in there was a large accumulation of
       trash and junk on the property, immediately surrounding the mobile home.

(6)    This trash and junk included an old boat filled with trash, old mattresses half-
       buried in the ground, an old rusted hot water heater, an old refrigerator with food
       still inside of it, broken glass, old tires, and bags of garbage.

(7)    There was an accumulation of old tires in a small creek near the mobile home.

(8)    Mr. Vladyka promised to bring a dump truck to the property to clean up the junk
       but never did.

(9)    Ms. Marsh and her friends cleaned up some of the junk to the point where she
       could mow the grass.

(10)   Every month it was Mr. Vladyka’s custom to come to the home to pick up the rent
       payment.

(11)   During the winter, there were heating problems with the mobile home. For
       instance Ms. Marsh’s bedroom did not receive heat.

(12)   The average heating bill during the winter was $600.

(13)   Mr. Vladyka attempted to repair the heating in the bedroom by patching the room
       with aluminum foil.

(14)   Ms. Marsh was forced to sleep in her living room for lack of heat in the bedroom.

(15)   In December 2007, Mr. Vladyka asked Ms. Marsh if she wanted ownership of the
       mobile home.

(16)   Ms. Marsh told Mr. Vladyka that she would think about it.

(17)   In February 2008, Mr. Vladyka again asked Ms. Marsh if she would like
       ownership.

(18)   Ms. Marsh responded that she did not want her name on the mobile home and that
       she would not sign anything.

(19)   At some point prior to January 2009, Mr. Vladyka filed a Bill of Sale in the town
       UCC Records, purporting to transfer ownership of the mobile home to Ms. Marsh.

(20)   Ms. Marsh gave no consideration for the mobile home and she did not sign the
       bill of sale.




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(21)   On February 7, 2009, Ms. Marsh called Mr. Vladyka regarding a sewage back-up
       problem at the home.

(22)   Sewage was backing up into the bathtub when the toilet flushed.

(23)   Mr. Vladyka came to the home on February 8 to fix the sewage problem.

(24)   Mr. Vladyka’s “fix” was to disconnect the sewage pipe under the mobile home,
       allowing the sewage to spew onto the ground under and surrounding the home.

(25)   Neither Ms. Marsh nor any member of the household ever disconnected the pipe
       or went under the home.

(26)   On February 22nd, a state official came out to the home to look at the sewage
       problem. He took pictures and spoke with Mr. Vladyka.

(27)   That same day, Mr. Vladyka reconnected the sewage pipe. The sewage backed up
       into the tub again.

(28)   The next day, February 23rd, Ms. Marsh received a notice of eviction from Mr.
       Vladyka.

(29)   The notice of eviction cited accumulation of trash and unpaid rent as the reasons
       for eviction.

(30)   Later that February, the sewage pipes froze for lack of insulation, which was torn
       and strewn about under the home.

(31)   Monthly rent of $495 has been paid into Court by Ms. Marsh for the months of
       February 2009 and onward.

                              CONCLUSIONS OF LAW

       The warranty of habitability is set forth in 9 V.S.A. § 4457(a), which states that

“[i]n any residential rental agreement, the landlord shall be deemed to covenant and

warrant to deliver over and maintain, throughout the period of the tenancy, premises that

are safe, clean and fit for human habitation and which comply with the requirements of

applicable building, housing, and health regulations.” Furthermore, as part of the

warranty of habitability, “the landlord shall ensure that the dwelling unit has heating

facilities which are capable of safely providing a reasonable amount of heat.” § 4457(c).


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        If the landlord fails to comply with the obligations for habitability and, after

receiving actual notice, fails to make repairs within a reasonable time and the

noncompliance materially affects health and safety, the tenant may: (1) withhold payment

of rent during the period of noncompliance; (2) obtain injunctive relief; (3) recover

damages, costs and reasonable attorney’s fees; and (4) terminate the rental agreement on

reasonable notice. 9 V.S.A. § 4458(a). Here, the tenants seeks to withhold payment and to

recover attorney’s fees. These remedies, however, are available only if the

noncompliance was not caused by the tenant’s negligence or deliberate act or omission.

§ 4458(b).

        Here, the premises were uninhabitable in three aspects. First, the failure to fix the

sewage backup materially affected the health and safety of the tenants. Instead of actually

fixing the sewage backup, Mr. Vladyka disconnected the sewage pipe, allowing raw

sewage to spew out under the mobile home. This was wrong on many levels. When the

state official spoke with Mr. Vladyka later that month, Mr. Vladyka finally reconnected

the pipe. However, this did not fix the problem and sewage continued to backup into the

bathtub. Furthermore, the insulation surrounding the sewage pipes was torn off and

strewn about under the mobile home. This caused the sewage pipes to freeze.

        Second, the property has so much garbage on it that it appears as if the mobile

home is placed in the middle of a junk yard. This junk was there when the tenants moved

in. It includes an old non-covered boat that is filled with trash, an old refrigerator that still

has meat and various foods in it, an old rusted water heater, old mattresses, broken glass

strewn about near the mobile home and boat, and many bags of garbage. In the stream

near the mobile home are numerous old tires.




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       Third, when the tenants notified Mr. Vladyka about the lack of heat in the

bedroom, he proposed to fix the problem by using aluminum foil to patch the room. This

did not solve the problem. The tenants paid $600 a month for heat and Ms. Marsh was

forced to sleep in the living room during the winter. The warranty of habitability requires

that the dwelling unit have heating facilities which are capable of safely providing a

reasonable amount of heat. 9 V.S.A. § 4457(c).

       Each of these aspects, independently, make the premises uninhabitable.

Combined, the overall condition of the premises is deplorable and not fit for human

habitation. The lack of proper sewage, heat, and safe surroundings are a serious threat to

the health and safety of the tenants and their children. The defendant-tenants were

entitled to withhold rent. Thus, they will be refunded the rent the they have paid into

Court. Furthermore, they are entitled to attorney’s fees.

       Turning to the tenants’ claim for retaliatory eviction, a landlord of a residential

dwelling unit may not retaliate by bringing an action against a tenant who has complained

to a government agency regarding a violation of a health regulation which affects health

and safety, or has complained to the landlord of a violation. 9 V.S.A. § 4465(a). If the

landlord does retaliate, the tenant is entitled to recover damages and reasonable attorney’s

fees and has a defense in any retaliatory action for possession. § 4465(b).

       Here, the tenants have proved their claim. They notified Mr. Vladyka numerous

times as to each of the problems at the mobile home. One day after the state official came

to the premises and made Mr. Vladyka reconnect the sewage pipe, Mr. Vladyka notified

the tenants that they were being evicted. He then brought this suit for back rent and a

write of possession, based on non-payment of rent and accumulated garbage on the




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property. The tenants have proven that they were entitled to withhold rent and the

garbage was not theirs. The eviction action by Mr. Vladyka was an act of retaliation.

       The tenants seek punitive damages for the retaliatory eviction action. “To

demonstrate the malice necessary to establish liability for punitive damages, one must

show conduct manifesting personal ill will or carried out under circumstances evidencing

insult or oppression, or even by conduct showing a reckless or wanton disregard of one's

rights.” DeYoung v. Ruggiero, 2009 VT 9, ¶ 24, 185 Vt. 267. “[I]n addition to a showing

of illegal, wrongful, or reckless conduct, there must be some evidence of bad motive on

the defendant's part to establish malice and support an award of punitive damages.” Id.

“[M]alice may arise from deliberate and outrageous conduct aimed at securing financial

gain or some other advantage at another's expense, even if the motivation underlying the

outrageous conduct is to benefit oneself rather than harm another.” Id. at ¶ 27.

       Here, in addition to the evidence of retaliatory eviction following the complaints

to Mr. Vladyka and the visit from the state official, Mr. Vladyka also attempted to place

ownership of the mobile home in Ms. Marsh’s name. Ms. Marsh expressly told Mr.

Vladyka that she did not want to own the mobile home and that she would not sign

anything. Still, Mr. Vladyka filed a bill of sale in the UCC records, without Ms. Marsh’s

signature and without any consideration paid by her, in an attempt to shift responsibility

for maintenance of the premises away from him. Mr. Vladyka’s goal was to place

ownership of the mobile home in Ms. Marsh’s name so that he would not have make the

proper repairs and provide her with a habitability premises, as was his responsibility as

her landlord. This was “deliberate and outrageous conduct” aimed at securing financial

gain for Mr. Vladyka at Ms. Marsh’s expense. See DeYoung, 2009 VT 9, ¶ 27 (holding




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malice exists even if the motivation underlying the outrageous conduct is to benefit

oneself rather than harm another).

       Punitive damages by their nature cannot be precisely measured, and their

assessment is largely within the fact-finder's discretion. Pion v. Bean, 2003 VT 79, ¶ 44,

176 Vt. 1. “[T]he most important indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant's conduct.” Shahi v. Madden,

2008 VT 25, ¶ 26, 183 Vt. 320 (quoting State Farm Mutual Automobile Insurance Co. v.

Campbell, 538 U.S. 408, 419 (2003)).

       Reprehensibility is to be determined by reference to whether: (1) the harm caused

was physical as opposed to economic; (2) the tortious conduct evinced an indifference to

or a reckless disregard of the health or safety of others; (3) the target of the conduct had

financial vulnerability; (4) the conduct involved repeated actions or was an isolated

incident; and (5) the harm was the result of intentional malice, trickery, or deceit, or mere

accident.” Shahi, 2008 VT 25, ¶ 26 (citing Campbell, 538 U.S. at 419).

       Here, the tortious conduct evinced a reckless disregard for the health and safety of

others as Mr. Vladyka attempted to rid himself of his landlord duties while allowing his

tenants to live in an uninhabitable premises. This included directing raw sewage to

accumulate under the house instead of properly fixing the problem. Next, the tenants who

were the target of the conduct had financial vulnerability as they did not make a lot of

money. The conduct involved the filing of a retaliatory eviction action designed to relieve

Mr. Vladyka of his duties as landlord, at which he failed repeatedly, to provide habitable

premises for his tenants. Finally, the harm was the result of an intentional act. Mr.




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Vladyka intentionally sought to evict the tenants, after intentionally filing a false bill of

sale and intentionally refusing the clean up and fix the premises.

       As such, the defendants are entitled to punitive damages. The Court finds that two

times the amount of rent currently held by the Court is the appropriate amount. The Court

also finds that defendants are entitled to reasonable attorney’s fees.

                                              ORDER

       (1)     Judgment to the defendants in the amount of all accumulated rents paid

               into the Court from February 2009 to present. This judgment reflects

               defendants legal right to withhold rent for breach for the warranty of

               habitability. The rents paid in to Court shall be released to Defendant’s

               after 10 days, unless there is good cause shown by Plaintiff.

       (2)     Punitive damages of $6,930.00; the amount equal to two times the amount

               of the rent which was paid into Court from the months of February to

               August 2009.

       (3)     The defendants are awarded costs and expenses, including reasonable

               attorney’s fees. The defendants’ counsel will submit the information as to

               attorney’s fees.


       Dated at Rutland, Vermont this _____ day of ________________, 2010.


                                                       ____________________
                                                       Hon. William Cohen
                                                       Superior Court Judge




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