Dionne v. Giancola, No. 123-2-13 Wrcv (Teachout, J., July 9, 2014)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Windsor Unit                                                                               Docket No. 123-2-13 Wrcv


PATRICIA DIONNE
     Plaintiff

v.

MARY GIANCOLA
    Defendant



                                            DECISION
                          Defendant’s Motion for Partial Summary Judgment

        The matter before the court is defendant’s motion for partial summary judgment,
filed March 14, 2014. Defendant is represented by attorney Matthew S. Branchaud.
Plaintiff is represented by attorney Jeffrey P. White.

        The issues presented by Defendant’s motion arise in the context of an action for
partition of a residential property, located in Ludlow, Vermont, owned by Plaintiff and
Defendant as cotenants. Plaintiff’s complaint, filed on February 22, 2013, requests that
the court order the property to be partitioned by public or private sale, and that the
proceeds thereof be distributed between the parties. Plaintiff also seeks litigation costs
and attorney’s fees, and asks that these be awarded out of the proceeds of sale.

         Defendant filed an answer to the complaint on April 12, 2013 and raises the
affirmative defense of “setoff.” Defendant claims she is “entitled to reduce or offset any
amount payable to plaintiff by the work, labor, and expenses defendant has paid into the
camp and property, and/or for the extra value defendant has added to the property’s
market value.” Defendant’s answer also requests that the court deny Plaintiff’s request
for litigation costs and attorney’s fees.

        As revealed by the parties’ motion papers, Plaintiff, during the course of
discovery in this matter, intimated that she may also seek a setoff for, among other things,
the number of hours she and her spouse spent on tasks related to the property, such as
accounting, cleaning, repairs, and maintenance.          The responses to Defendant’s
interrogatories, annexed to Plaintiff’s opposition papers, set forth a claim that Plaintiff
and her spouse worked a total of 304.5 hours, which, at a self-determined rate of
$30/hour, equates to $9135. Plaintiff further states that some of her work resulted in
increasing the property’s value by “at least $11,000.”
       Now, by motion for partial summary judgment, Defendant asks that the court: (1)
preclude any request from Plaintiff for $11,000 in value added to the property; and (2)
deny Plaintiff’s request for attorney’s fees.

Equitable Considerations in Partition Actions

        “[T]he goal of partition actions is ‘that a cotenant must equally share both the
burdens of land ownership (i.e., the responsibility of preserving the land) as well as the
benefits.’” Massey v. Hrostek, 2009 VT 70, ¶ 21, 186 Vt. 211 (quoting Parker v.
Lambert, 206 S.W.3d 1, 5 (Tenn. Ct. App. 2006)). “Thus, if ‘one cotenant bears a
disproportionate share of the burden, the other cotenants must provide compensation,’
and ‘if one cotenant enjoys a disproportionate share of the benefits, the other cotenants
must be compensated’ to achieve partition's equitable goals.” Id.

        The Supreme Court has explained that “the statutes dealing with partition of real
estate ‘should be interpreted to give the trial court as many options as possible to achieve
equity between the parties, including an expansive power to assign property to one of the
co-tenants.’” Begin v. Benoit, 2006 VT 130, ¶ 6, 181 Vt. 553 (quoting Wilk v. Wilk, 173
Vt. 343, 346 (2002)). The Court further noted that “partition actions are equitable in
nature and that in such actions, courts should consider all relevant circumstances to
ensure that complete justice is done.” Begin, 2006 VT 130, ¶6 (quotation and citation
omitted). Accordingly, it is appropriate to consider a cotenant’s “prior financial
contributions to the property in an effort to equitably divide the parties’ interests.” Id.

         The Court went on to clarify that in making these considerations, it “must restrict
itself to the contributions made to the real property and that to do otherwise would be
beyond the scope of 12 V.S.A. § 5161.” Id. ¶ 9 (quotation omitted). This principle, that
courts are restricted to considering the financial contributions made to the real property
itself, was repeated in Whippie v. O’Connor (“Whippie I”), 2010 VT 32, ¶¶ 4, 26, 187 Vt.
523, where the Court referred to the plaintiff’s payments for “personal needs,” “credit
card debt,” and “purchases for the parties’ children” as “not relevant to partition.”

       The related series of decisions, commencing with Whippie I, contains the Court’s
most recent iteration of the standard for allocation of property in partition actions:1

                  [T]he partitioning court should split the property in half and
                  then consider equitable factors in the following order. First,
                  the court may determine the contributions of each party
                  towards the actual expenses of the house, including
                  mortgage, insurance, taxes, utilities, repairs, and
                  improvements. These contributions can credit a party for
                  payment of other expenses, but only where, by agreement
                  with the other cotenants, the claiming party paid more than
                  its pro-rata share of such other expenses in lieu of a pro-

1
 The standard set forth in Whippie I should be utilized “[a]bsent a compelling alternative approach.”
Whippie I, 2010 VT 32, ¶ 15. This court finds no “compelling alternative” here.


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                 rata contribution to its shared obligation on the real
                 property bills. Second, the court should credit against
                 contribution claims a rental value offset for any period of
                 exclusion of a party ousted from the premises by the
                 cotenants in possession. The court should next consider
                 other equities cognizable in partition and then any
                 allocation of costs and fees arising from partition.

        Id. ¶ 15. Later, in Whippie v. O'Connor (“Whippie II”), 2011 VT 97, 190 Vt.
600, the Court, drawing from its opinion in Massey, state\d that because allocation in
partition is “based on the principle that all tenants share equally in the burdens and
responsibilities of ownership,” “‘a cotenant who pays necessary maintenance costs
associated with jointly owned property is entitled to a setoff for the other tenant’s portion
of those costs.’” Id., 2011 VT 97, ¶ 13 (quoting Massey, 2009 VT 70, ¶¶ 21–22 (holding
that it was proper to credit cotenant for costs of property taxes, necessary utilities, house
cleaning services, insurance, maintenance, and pest control, but not for the costs of
telephone and television services, as these costs were not necessary to maintain the
property)).

        Here, this court will consider the contributions made by either party to the
property’s “necessary” expenditures.       However, when reviewing the cotenants’
contributions to “necessary” expenditures in the above-cited cases, the review has been
limited to only considering monetary payments, not the value of any hours worked by the
cotenants themselves. Whereas Defendant’s instant motion does not specifically address
Plaintiff’s claim of $9135 for her and her spouse’s time and labor, both parties are
advised that when considering “necessary” expenditures as a setoff for either party, this
court may consider what the parties actually paid, but will not engage in effectively
establishing and crediting an hourly wage for the parties’ work.

        This court may, however, consider the parties’ time and labor to the extent any
work increased the value of the property. See Massey, 2009 VT 70, ¶ 23 (citing Palanza
v. Lufkin, 2002 ME 143, ¶ 11, 804 A.2d 1141; Hernandez v. Hernandez, 645 So.2d 171,
175 (Fla. Dist. Ct. App. 1994)). This principle applies both to time and labor spent on
“necessary” matters, as well as any “discretionary improvements” to the property. See
id.; Whippie II, 2011 VT 97, ¶ 13. With respect to any “discretionary improvements,” the
parties may only be credited for the “resultant increase in fair market value, not for the
actual costs.” Massey, 2009 VT 70, ¶ 23 (emphasis in original).2




2
  The Massey Court further explained that the difference between “necessary” items and “discretionary
improvements” arises from the “unnecessary-even if desirable-nature of improvements”—“[t]he improving
tenant could choose, without detriment to the property, not to undertake discretionary improvements.”
Massey, 2009 VT 70, ¶ 23. “The improvement must not be a foolish or an improvident one, or merely to
meet the whim or caprice of the improver. The right to compensation and the extent of the allowance are
determined by the resulting increase and enhancement in the value of the property, not the cost of the
improvement.” Id. (quotation and citation omitted).


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        The party claiming any increased valued to the property bears the burden of
demonstrating the amount by which the value of the property was enhanced by that
party’s efforts. See id.

       Defendant seeks a ruling that Plaintiff is precluded from claiming credit for
$11,000 in increased property value, but, as explained above, a credit may or may not be
appropriate; there is an insufficient factual basis on which to base a summary judgment
ruling. The measure of any possible credit, however, would not be time and labor
expended, but rather enhancement to property value. Matters of fact remain as to
whether the property has increased in value over the course of the parties’ cotenancy and
how, if at all, any increase in value is attributable to either party. Therefore, at this time,
Defendant’s request that Plaintiff be precluded from seeking this relief is denied.

Litigation Costs and Attorney’s Fees in Partition Actions

        Defendant further requests that Plaintiff be barred from seeking litigation costs
and attorney’s fees. In their motion papers, both parties correctly note that in Vermont,
“[a]bsent a statutory or contractual provision, we apply the ‘American Rule’ that requires
parties to bear their own attorney’s fees.” Monahan v. GMAC Mortg. Corp., 2005 VT
110, ¶ 76, 179 Vt. 167 (citing DJ Painting, Inc. v. Baraw Enters., 172 Vt. 239, 246
(2001)). This portion of Defendant’s motion for partial summary judgment is therefore
granted.

                                          ORDER

       Defendant’s Motion for Partial Summary Judgment is denied as to Plaintiff’s
claim for enhancement to property value, and granted as to attorneys’ fees.

       Dated this ___ day of July, 2014.


                                                                       ________________________
                                                                        Mary Miles Teachout
                                                                        Superior Court Judge




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