Goodwin v. Franklin, No. 116-5-11 Cacv (Teachout, J., December 20, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Caledonia Unit                                                                             Docket No. 116-5-11 Cacv

WAYNE GOODWIN and
PAMELA NORRIE,
    Plaintiffs

           v.

FREDERICK G. FRANKLIN,
    Defendant

                                                           DECISION

       A final hearing was held on November 14, 2012. Plaintiffs were present and
represented by Attorney Maryellen Griffin. Defendant was present and represented
himself. Plaintiffs seek damages for loss of water in the residence they rent from
Defendant as well as recovery based on a number of related claims.

      Based on the credible evidence, the Court makes the following Findings of Fact
and Conclusions of Law.

                                                       Findings of Fact

        Plaintiffs are tenants of Defendant Frederick Franklin, who owns property in
Newark, Vermont. In addition to his own house, Mr. Franklin owns two other houses on
his property that he rents out. In June of 2010, Wayne Goodwin and his mother Pamela
Norrie rented one of Mr. Franklin’s houses on a 10-acre parcel. They had been looking
for a place to live in a rural area where they could have animals, and responded to an ad
placed by Mr. Franklin that they found attractive. The house consists of two stories and
is 20’ by 30’. The water for the rental house comes from a well via Mr. Franklin’s own
house. There is a pump in Mr. Franklin’s house, and the water goes from there to the
rental house, where there is another pump.

        The parties made an oral rental agreement and the Plaintiffs moved in. Their
household consists of Mr. Goodwin and Ms. Norrie, Mr. Goodwin’s brother Nicholas,
Nicholas’s girlfriend, and her two children. They keep a beef cow and raise their own
food. Both of the Goodwin brothers work as brush cutters, and their mother, Ms. Norrie
drives a school bus and works full time as a caregiver for an elderly person.

        Five months after the Goodwins (“Tenants”) moved in, in November of 2010,
they started to lose water. They complained to Mr. Franklin (“Landlord”). From then on,
over the last two years from time to time, they have periodically and continuously either
had no water at all, or had low water pressure in the house. The length of water outages
varies. They routinely notify Landlord, and the water often comes on again, only to go
off again on another day. During 2011 and 2012, a Vermont State Trooper was called to
the property on many occasions, and at least six times, he advised Landlord that he was
not entitled to shut off the Tenants’ water due to nonpayment of rent. Apparently
Landlord believed that the Tenants were not paying their rent. Rent receipts show
payments of rent through January of 2012, although the evidence did not include details
of whether all rent due was paid in full.

        In May of 2011, Wayne Goodwin filed this suit based on the water outages. On
May 24, 2011, the parties settled the case with a stipulation that became an Order. It
provided that Landlord agreed to supply, “without interruption, water sufficient in
quantity and pressure to meet the ordinary needs of the occupants.” May 24 Order, ¶ 1.
Tenants waived claims with respect to past water shut-offs, and Landlord waived past
unpaid rent. They agreed on a rental amount going forward, and Mr. Goodwin agreed to
perform some repairs. They further agreed that if Landlord violated ¶ 1 or otherwise
violated the Warranty of Habitability, Tenants’ waiver of past claims was cancelled.
Thereafter, Mr. Goodwin did the work agreed upon.

        Nonetheless, water shutoffs continued. In late July of 2011, the Town Health
Officer inspected the house and issued a Report on August 1, 2011 that stated: “It is
really hard to pinpoint what is going on as this water supply comes from a pump at Mr.
Franklin’s house. I am quite sure Mr. Franklin turns it off & on to cause the Goodwins
aggravation because of alleged rent issues.”

        In August, Tenants filed a Motion to Enforce the Agreement, which was granted
on September 20, 2011 after hearing (Gerety, J.). The Court found Landlord in contempt
and the Order: 1) required him to provide sufficient water in quantity and pressure,
without interruption, to meet ordinary needs; 2) provided for a daily fine of $50 for
further violations; 3) provided for payment of Tenants’ attorneys fees; and 4) reopened
the case pursuant to the May 24, 2011 Stipulation and Order and ordered that it be set for
hearing.

        Landlord was on probation. His probation officer was contacted many times
about the water shutoff problem. In September of 2011, when there was a water outage,
Probation Officer Michael Cross followed Landlord into his house and observed him turn
on the water system. Shortly thereafter, he verified at the Tenants’ house that the water
was restored.

        Landlord has been consistently clear that the reason he has turned off the water is
that he believes that the Tenants have not paid their rent, and that when they do not pay
rent they are not ‘tenants’ and therefore he does not have to provide water. In a letter to
Judge Gerety on September 29, 2011 following the hearing on the motion for
enforcement of the stipulated order, Landlord wrote: “[W]ater will not be available in ten
days which ends Tues, 10-4-11. I provide nothing for liars who don’t pay as all other
dignified tax paying pillars of society as I, do.”

         On October 13, 2011, the Tenants filed a Second Motion to Enforce and
Contempt. This motion was granted and an Order issued on November 8, 2011 (Gerety,
J.), followed by an Order of November 29, 2011 (Gerety, J.) based on a Stipulation and


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Agreement, which provided that Landlord would go home “directly and immediately
restore water service to the Goodwins.” It further provided that he would, at all times,
provide “uninterrupted water sufficient in quantity and pressure to meet the ordinary
needs” of Tenants’ family, and that if Landlord discontinued or interrupted water service
at any time and the fact was verified by specified persons, Landlord would be
incarcerated until further order of the Court. Landlord stipulated that he had the present
ability to provide water to the Tenants as required by the agreement. The Court ordered
Landlord to pay sanctions of $1,407.94 for attorney’s fees related to the second contempt
motion.

        On January 17, 2012, Mr. Goodwin wrote to Landlord that the water was off
again and sought a resolution. The final paragraph of the letter stated, “Please get back to
me. If I have not heard from you by February 1, 2012, I will assume that you do not
intent to respond and I will take appropriate steps with the Court.” There is no evidence
that any steps were taken.

        On May 7, 2012, the Court (Gerety, J.) approved a prejudgment attachment in the
amount of $30,000.00. The pattern of periodic water shut-offs continued. In May of
2012, a Vermont State Trooper was called again when there was no water in the Tenants’
home. Landlord told the trooper that the Tenants were “parasitic maggots.” His
probation officer continued to go to Landlord’s home, and Landlord referred to the
Tenants as “freeloading squatters.” On May 25, 2012, the Tenants filed the Third Motion
for Contempt. In the summer of 2012, on one occasion, Landlord chased Nicholas
Goodwin up the road, took a swing at him, and called the members of the family
“freeloaders” and “useless squatters.”

        A hearing was held on the third motion for contempt in September of 2012.
Landlord had notice of the possibility of incarceration for contempt. He was represented
at the hearing by Attorney Daniel Richardson. The Court found him in contempt for not
maintaining the water supply to the Tenants, and he was incarcerated. He was released at
a follow-up hearing so that he could arrange for the restoration of water service. He was
given the opportunity to have the system inspected by a plumber and make necessary
repairs to assure quantity and pressure of water to the Tenants’ home. Specific repairs
were recommended by a plumber, which he was required to complete by October 12,
2012. He did not do so, and he continued to shut the water off. He was incarcerated
again on October 31, 2012 and released on November 7, 2012. The final hearing was
scheduled for November 14, 2012. The water was off the day before and the day of the
final hearing on November 14, 2012. Landlord clearly stated to the Tenants’ lawyer:
“The thing is, your clients have not paid rent.”

       As of November 14, 2012, the water supply was either off or low and insufficient
in quantity or pressure on 515 days.

        In addition to shutting off the water, Landlord has occasionally shut off the power
to the rental house. Nicholas Goodwin has seen him open the electric box and switch the
power on or off approximately six times. The power box has been padlocked and
Landlord has cut off the padlock.


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        The effect of lack of water on the Tenants is that they have no water for drinking,
bathing, cooking, doing dishes, or watering their beef cow, “T-Bone.” They cannot keep
their bodies or clothes clean, and face the humiliation of being dirty and smelly as a
result. They have difficulty keeping the toilet free of waste as there is often no water to
flush. Ms. Norrie testified that they were normally poor but clean, but the effect of this
was to make them “dirty poor.” They have to go to gas stations to use the toilet facilities.
They have to haul 30–40 gallons of water per week to keep their beef cow alive.

        There was testimony that the situation is demoralizing and has contributed to Ms.
Norrie becoming depressed and unmotivated. There was no expert testimony that she has
a clinical diagnosis of depression. She cannot have her 4 year old and 7 month old
grandchildren visit at her home because of the lack of water and the inability to maintain
cleanliness.

         The evidence is overwhelming that Tenants have suffered for two years not only
the lack of a sufficient and reliable water supply and the inconvenience and discomfort
that a lack of water entails, but constant uncertainty, annoyance, and resulting humiliation
and indignity that comes from not being able to maintain cleanliness.

        Landlord testified that he has never purposefully interrupted the Tenants’ water
supply, “ever,” and that “the water is perfect.” The Court does not find this testimony
credible. He also testified that he only has problems with tenants when they do not pay
rent, and that he is being stolen from by the Tenants, who he considers to be
“freeloaders.”

       Landlord has not pursued a legal eviction of the Tenants by following the
requirements of the law.

                                   Conclusions of Law

                                      Illegal Eviction

         Vermont law specifies three types of illegal evictions, one of which is that “[n]o
landlord may willfully cause, directly or indirectly, the interruption or termination of any
utility service being supplied to the tenant, except for temporary interruptions for
emergency repairs.” 9 V.S.A. § 4463(a). “Any tenant who sustains damage or injury as
a result of an illegal eviction may bring an action for injunctive relief, damages, costs and
reasonable attorney’s fees.” Id. § 4464(a).

        The evidence shows that from November of 2010, approximately five months
after moving into their residence, continuing to the present, Landlord has periodically and
persistently interrupted the flow of water to the Tenants’ residence to a significant degree.
The findings of fact are also clear that Landlord has been acting willfully in interrupting
the flow of water to Tenants’ residence during this time. Thus, Tenants are entitled to a
remedy under § 4464(a). Due to the severity and malicious nature of Landlord’s actions,
Tenants are entitled to both compensatory and punitive damages. Villeneuve v. Beane,
2007 VT 75, ¶ 10, 182 Vt. 575 (recognizing “an exception to the general rule that breach
of contract does not support punitive damages when the breach has the character of a

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wilful and wanton or fraudulent tort, or when the evidence indicates the breaching party
acted with actual malice”) (citation omitted).

        In May of 2011, Tenants filed suit based on the water outages. That suit
eventually resulted in a stipulation that became an Order on May 24, 2011 (Gerety, J.).
In direct violation of that Order, problems with the flow of water continued, and
consequently Landlord has been found in contempt three times, on September 20, 2011
(Gerety, J.), November 8, 2011 (Gerety, J.), and September 7, 2012. The September 20,
2011 Order again required Landlord to supply sufficient flow of water, and further
provided for a daily fine of $50 for further violations and the payment of attorney’s fees.

         Tenants are therefore entitled to compensatory damages for each of the 515 days
they were without adequate flow of water to their residence. A reasonable compensatory
amount is $50 per day, which is equal to the amount of the fine imposed in the September
20, 2011 Order for further violations. In addition, Tenants are also entitled to $25 per
day in punitive damages due to the willful, malicious, and continued actions of Landlord
over a two-year period. Although the total amount of punitive damages substantially
exceeds those upheld in Villeneuve, the nature of the conduct is different. In this case,
there has been a long-term, relentless, deliberate campaign of harassment through water
shut-offs and reductions in water pressure lasting two years, despite several warnings and
opportunities to comply with the law and court orders. Orders to stop the shut-offs and
provide sufficient water have been flagrantly violated. In sum, Tenants are entitled to a
total of $75 per day in damages for each of the 515 days that they were without sufficient
water, for a total of $38,625.00 through November 14, 2012. This daily total amount of
$75 is reasonable in relation to the cost that Tenants would have had to pay to stay in
motels or other accommodation while their residence was without sufficient water
supply, especially considering the number of people in their household.

       Tenants are also entitled, pursuant to 9 V.S.A. § 4464(a), to an injunction
prohibiting Landlord from tampering with the flow of water going forward, with an
additional $75 fine per day where insufficient water is supplied to Tenants’ residence.
The previous fine of $50 per day was clearly insufficient to deter continuing tampering.

        Finally, under 9 V.S.A. § 4464(a) and the September 20, 2011 Order, Tenants are
entitled to attorneys fees. Tenants’ attorney is ordered to submit an affidavit within 15
days, detailing reasonable attorney’s fees. The request shall not include duplication of
the $1,407.94 already awarded in sanctions, which shall become part of the judgment in
this case. Subsequently, Landlord will have 15 days to object to the reasonableness of
the amount.

                                 Warranty of Habitability

        Under Vermont law, “in 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.” 9 V.S.A.



                                             5
§ 4457(a); Hilder v. St. Peter, 144 Vt. 150 (1984). When a landlord does not comply
with the requirements, and

       after receiving actual notice of the noncompliance from the tenant . . . the
       landlord fails to make repairs within a reasonable time and the
       noncompliance materially affects health and safety, the tenant may:

       (1)   withhold the payment of rent for 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). “Actual notice” is defined as “written notice hand-delivered or
mailed to the last know address.” Id. § 4451(1). Punitive damages are also allowable.
Hilder, 144 Vt. at 161, 163. Punitive damages are available when the breach of the
Warranty of Habitability “is of such a willful and wanton . . . nature as to make
appropriate the award of exemplary damages.” Id. at 165 (concluding that punitive
damages are available where the landlord’s consistent disregard for tenant’s rights
“evince[d] a pattern of intentional conduct . . . for which the term ‘slumlord’ was surely
coined”).

        Beginning approximately five months after Tenants began their tenancy, Landlord
has been in violation of § 4457(a) for failing to provide a premises that is fit for human
habitation by continuously and repeatedly interrupting the flow of water to Tenants’
rental unit. Landlord has been on actual notice of the water problem since Tenants first
began to experience an interruption in their water supply in November, 2010. The flow
of water to Tenants’ residence has been either off, low, or insufficient in quantity or
pressure for a total of 515 days.

        These interruptions to the flow of water have been so severe and continuous that
they have had a deleterious effect on the mental and physical health of the Tenants and
their ability to have water for themselves and their cow. The impact of the lack of water
has also resulted in extreme inconvenience to Tenants, forcing them to forego normal
social visits as well as to drive to use toilet facilities and to obtain potable water.

        For these reasons, Tenants’ rental residence has been out of compliance with the
Warranty of Habitability for 515 days, from November 2010 to November 14, 2012.
Throughout this period, Landlord has been adamant that he is turning off the water to
Tenants’ residence because he believes they have not paid rent. Further, as the findings
of fact clearly show, Landlord is acting in a willful and malicious manner toward
Tenants, as he considers them to be “parasitic maggots” and “freeloading squatters.”
Therefore, Tenants have a right to damages, costs, and reasonable attorney’s fees.
9 V.S.A. § 4458(a)(3). Both compensatory and punitive damages have already been
provided for as a consequence of Landlord’s illegal eviction of Tenants, and therefore the
Court will not award duplicative damages. Similarly, the Court has already ordered an
injunction and will not enter an additional one. Nonetheless, Plaintiffs have proved




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breach of the Warranty of Habitability as a second legal basis, in addition to illegal
eviction, for the remedies previously provided.

        Due to Landlord’s breach, Tenants are entitled to the additional remedy of
withholding rent pursuant to 9 V.S.A. § 4458(a)(1) “for the period of the
noncompliance.” On January 17, 2012, Tenants wrote Landlord a letter, informing him
that the water was not flowing again, and that absent response by February 1, 2012,
Tenants “will take appropriate steps with the Court.” There is no evidence that any steps
were taken in accordance with this letter. An appropriate step in such a case, however, is
to withhold rent. Tenants are thus entitled to withhold rent as of February 1, 2012 until
the “period of noncompliance” terminates.

        The Court will award reasonable attorneys fees to the extent Tenants’ attorney can
indicate fees arising out of this particular claim, separate and distinct from the fees
arising out of the illegal eviction claim. Tenants’ attorney is ordered to submit any such
affidavit within 15 days, detailing reasonable attorney’s fees for work related to this
claim. Subsequently, Landlord will have 15 days to object to the reasonableness of the
amount.

                                        Negligence

         Under Vermont law, a party may recover damages stemming from negligence in
addition to damages resulting from breach of contract, i.e., breach of the Warranty of
Habitability. Willard v. Parsons Hill P’ship, 2005 VT 69, ¶ 31, 178 Vt. 300 (citing
Favreau v. Miller, 156 Vt. 222, 229–30 (1991)). “[T]he two actions provide different
remedies for different wrongs.” Id. Unlike an action for breach of the Warranty of
Habitability, however, “the law of negligence involves more difficult questions of
causation and comes into play only when . . . a plaintiff has sustained a personal injury.”
Id. (citing Favreau, 156 Vt. at 230). Here, although it is clear that Landlord’s actions
caused great distress and inconvenience to Tenants, there is insufficient evidence to
support a finding of personal injury. This claim is therefore denied.

                                      Consumer Fraud

        To make out a claim for consumer fraud pursuant to 9 V.S.A. § 2453(a), a
complainant must establish three elements concerning a representation or omission made
to a plaintiff: “(1) the representation or omission at issue was likely to mislead
consumers; (2) the consumer's interpretation of the representation was reasonable under
the circumstances; and (3) the misleading representation was material in that it affected
the consumer's purchasing decision.” Jordan v. Nissan N. America, Inc., 2004 VT 27, ¶
5, 176 Vt. 465 (citations omitted). “A landlord can commit a deceptive act prohibited by
§ 2453(a) when a landlord rents property to a tenant that is in violation of law.”
L’Esperance v. Benware, 2003 VT 43, ¶ 14, 175 Vt. 292 (citing Bisson v. Ward, 160 Vt.
343, 351 (1993)). In Bisson, the landlords rented an apartment to a tenant knowing that
the unit was in violation of health and safety codes because it did not have a certificate of
occupancy. Bisson, 160 Vt. at 351.



                                              7
        Here, Tenants have made no showing of any false representation or deceptive act
by Landlord that was likely to mislead consumers. The interruption in the flow of water
started approximately five months after the initiation of the oral lease agreement, not
from the outset. Furthermore, as the findings of fact and conclusions of law demonstrate,
the interruption to the flow of water was a means of illegal eviction, not fraudulent in
nature. Accordingly, this claim is denied.

                             Health Code—18 V.S.A. § 122

        Vermont law provides that “any person injured or damaged by a violation [of a
rule adopted pursuant to Title 18] may bring an action for equitable relief or damages
arising from such violation . . . .” 18 V.S.A. § 122(a). Remedies under this provision
“are in addition to any common law or statutory remedies otherwise available.” Id.
§ 122(c).

        Here, Tenants allege that Landlord violated Vermont Rental Housing Code by not
providing “a supply of water sufficient in quantity and pressure to meet the ordinary
needs of the occupant(s).” Vermont Health Regulations, Chapter 5, Environmental
Health Subchapter 16, Rental Housing Health Code, § III-D(1), available at
http://healthvermont.gov/regs/Rental_ Housing_Code.pdf. The Code applies to “all
rented dwellings.” Id. § I-C(1). The findings of fact show that Landlord has consistently
and repeatedly failed to provide a sufficient supply of water to Tenants residence. The
Court concludes that in addition to the damages for illegal eviction, Tenants are entitled
to damages of $5 per day for each of the 515 days that Tenants were without “a supply of
water sufficient in quantity and pressure,” thus bringing the total damages to $80 per day
for each of the 515 days.

                                        ORDER

       Counsel for the Plaintiffs shall prepare a Judgment and Order consistent with the
Findings and Conclusions.

       Dated at Saint Johnsbury, Vermont, this ___ day of December, 2012.


                                                      ____________________________
                                                      Hon. Mary Miles Teachout
                                                      Superior Court Judge

                                                      ____________________________
                                                      Hon. Roy C. Vance
                                                      Assistant Judge

                                                      ____________________________
                                                      Hon. William P. Kennedy
                                                      Assistant Judge




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