Chagnon v. Peterson, No. 200-6-14 Bncv (Wesley, J., Aug. 11, 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                    STATE OF VERMONT
SUPERIOR COURT                                                                                          CIVIL DIVISION
Bennington Unit                                                                                Docket No. 200-6-14 Bncv

Michael Chagnon,
      Plaintiff

           v.                                                                      DECISION ON THE MERITS
Stanley F.S. Peterson,
       Defendant

                                     Opinon and Order on Small Claims Appeal
                                  Reversing and Remanding Small Claims Judgment

        Michael Chagnon appeals a judgment from the Small Claims Court awarded against him
and in favor of his former tenant, Stanley Peterson. Mr. Chagnon leased a house to Mr.
Peterson in Manchester, Vermont. Mr. Peterson sued Mr. Chagnon to recover his security
deposit and money he advanced to pay for a new oil tank. Mr. Chagnon filed a counterclaim for
rents owed, as well as damage to the leased premises. On May 22, 2014, the Small Claims
Court held a hearing, which Mr. Peterson attended but Mr. Chagnon did not attend. The Small
Claims Court took testimony from Mr. Peterson and admitted exhibits, and rendered an oral
decision and written judgment for $3,480.26 and court costs of $78.75 in favor of Mr. Peterson
against Mr. Chagnon. Based on Mr. Chagnon’s failure to appear, the Small Claims Court
dismissed his counterclaims for failure to prosecute.

       On August 1, 2014, the Superior Court held a hearing on Mr. Chagnon’s appeal. Mr.
Chagnon appeared but Mr. Peterson did not appear. Mr. Chagnon indicated he did not receive
notice of the May 22, 2014 small claims hearing. Mr. Chagnon also disputed the Small Claims
Court’s interpretation of the notice required to terminate a month-to-month tenancy. Further,
Mr. Chagnon wished to present his counterclaim against Mr. Peterson.

         The Court first considers whether Michael Chagnon received adequate notice of the
May 22, 2014 hearing. A Court may vacate its decision if a party fails to answer due to
excusable neglect. See V.R.C.P. 60(b)(1). Out-of-state defendants pose a particular problem for
ensuring proper notice. See Brady v. Brauer. See 148 Vt. 40, 44 (1987). Moreover, inadequate
notice of a hearing can deprive a party of the party’s right to due process. See Pizzano Constr.
Co., Inv. Hadwen, 133 Vt. 495, 498–99 (1975). The law prefers the resolution of cases on the
merits, after a hearing at which each party has adequate notice and an opportunity to appear.
Courtyard Partners v. Tanner, 157 Vt. 638 (1991).

        The circumstances of this case persuade the Court that Mr. Chagnon did not receive
notice. Mr. Chagnon lives in Florida. For the weeks before the hearing, Mr. Chagnon was staying
in the New York City area to care for his spouse, where his spouse received critical medical
treatment. Mr. Chagnon indicated he monitored his mail received at his Florida address, and he
acknowledges receiving all of the Court documents other than notice of the hearing. 1 Mr.
Chagnon also spoke with a court staff member on April 11, 2014 to discuss possible dates for
the hearing, during which he formed the impression that it would likely be scheduled sometime
in June. After receiving notice of the judgment, Mr. Chagnon was distressed due to having
missed a hearing for which he had no notice. He drove to Bennington and ordered copies of
the small claims file as well as a transcript of the hearing. He vigorously disputes Mr. Peterson’s
claims, and had every intention of pursuing his counterclaims. He insists that had he received
notice he would have been present at the small claims trial. Notwithstanding the absence of a
returned envelope denoting the postal service’s unsuccessful attempt to deliver the mail, the
Court concludes that Mr. Chagnon has made a persuasive case that he did not receive actual
notice of the hearing. Under these circumstances, Mr. Chagnon will be deprived of his right to
defend against Mr. Peterson’s claim and to present his counterclaim unless relief is granted
through this appeal Pizzano at 498-99. Therefore, the Court will reverse and remand for a
hearing that allows both parties to present their cases.

       Because this matter must be returned to the small claims court for a new trial, and
because Mr. Peterson did not appear for the oral argument in connection with the small claims
appeal, the Court does not squarely address Mr. Chagnon’s other claims of error. In particular,
Mr. Chagnon disputes that Mr. Peterson gave adequate notice of termination of tenancy when
he purported to provide notice of his intention to vacate on Jan. 1, 2014 by email sent less than
a week prior to that date. According to Mr. Chagnon, Mr. Peterson had given a previous notice
in November 2013 that he would relinquish possession at the end of January 2014. Both
because of the short period associated with Mr. Peterson’s modified notice, and because Mr.
Peterson acknowledges that he continued to occupy the premises for a portion of January, Mr.
Chagnon claims entitlement to rent for the entire month. Furthermore, Mr. Chagnon maintains
that Mr. Peterson changed the locks on the apartment at an earlier time, and that he never
provided Mr. Chagnon with a key to the new lock, either before or after purporting to
terminate the tenancy and vacate. He disputes that he was required to account for any security
deposit until after he was able to gain access to the leased premises, which did not occur until
Mr. Peterson’s domestic partner informed him of the location of a key for the changed locks.

        The issues described by Mr. Chagnon during oral argument require resolution on
remand, based on the evidence considered at that time. For the purpose of the remand, the
Court clarifies notice requirements in terminating a tenancy, as well as the elements of
voluntary relinquishment of possession. Under 9 V.S.A. § 4456(d), a tenant can terminate a
month-to-month tenancy by giving one month’s notice. See Holl v. Ballard, No. 260-6-03 Wrcv,
2003 WL 25652481 (Vt. Super. Ct. Nov. 2003) (Teachout, J.) available at
https://www.vermontjudiciary.org/TCDecisionCvl/2005-7-1-9.pdf. Alternatively, the tenant
may surrender possession if the landlord accepts. See id. (citing Abbadessa v. Tegu, 120 Vt. 352
(1958)). Where the tenant changed the locks, the tenant must provide a key to the landlord to
surrender possession. See id. Additionally, the fourteen day period to return a security deposit
starts to run once the landlord knows the tenant vacated the property, after either a proper
termination of tenancy or relinquishment of possession. See 9 V.S.A. § 4461(c).


1
  A typographical error in the Court’s file may have caused the mailing problem. Mr. Chagnon and Mr. Peterson
refer to the street on which Mr. Chagnon lives as Reyes Court. Elsewhere in the file, the Court lists the street as
Reys Court. Although Mr. Chagnon received the judgment notwithstanding the misspelling of the street address, it
remains possible that the typographical error caused the U.S. Post Service to sometimes deliver mail but be unable
to find the address at other times.
                                             Order

       The Court REVERSES AND REMANDS to the Small Claims Court. The Small Claims Court
must conduct a new evidentiary hearing.

Electronically signed on August 11, 2014 at 12:21 PM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge
