Sawyer v. Robson  (2005-372)

2006 VT 136

[Filed 22-Dec-2006]


  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 2006 VT 136

                                No. 2005-372


  Samantha Sawyer                               Supreme Court

                                                On Appeal from
       v.                                       Lamoille Superior Court


  Bruce Robson and Antonio Latona               May Term, 2006


  Howard E. Van Benthuysen, J.

  Jean L. Murray, Vermont Legal Aid, Inc., Montpelier, for
  Plaintiff-Appellee/Cross-Appellant.

  Brice C. Simon of Olson & Simon, PLC, Stowe, for Defendants-Appellants. 


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess (FN1), JJ.



       ¶   1.   SKOGLUND, J.   Landlords  Bruce Robson and Antonio Latona
  appeal the superior court's decision granting tenant Samantha Sawyer's
  motion for a new trial based on the court's conclusion that the jury had
  returned an inconsistent verdict.  Tenant cross-appeals the superior
  court's decision granting landlords' motion to dismiss tenant's claim
  asserted under the Consumer Fraud Act and its denial of her motion for a
  directed verdict.  We affirm in part and reverse in part.
   
       ¶   2.   The following facts are undisputed.  In 2003, Latona
  purchased a mobile home for $900 and placed it on Robson's land.  Latona
  began renting the mobile home to tenant on September 1, 2004, for $500 per
  month.  The rental agreement provided that if tenant made twelve on-time
  payments (i.e., paid a total of $6000 in rent), she would own the home.  By
  January 2005, tenant had paid rent late at least once.  In February 2005,
  Latona and tenant argued about her rent payments, and Latona threatened
  eviction.  In March 2005, Robson-who lived next door to the property on
  which the mobile home was located-told Latona that tenant had not been at
  the property on a consistent basis for approximately one month.  Latona
  made an effort to telephone tenant but was not able to reach her.  Robson
  and Latona made a plan for Latona to go to the mobile home and remove
  tenant's belongings.  On March 23, 2005, Latona went to tenant's property
  and entered the mobile home.  Latona testified that when he entered the
  mobile home, a window was broken and all of tenant's electronic equipment
  was missing.  Latona removed tenant's remaining belongings and changed the
  lock.  He placed those belongings in storage.  Tenant returned to the
  mobile home on March 26, 2005, and contacted the police after seeing that
  her belongings were missing.  After tenant made various efforts to recover
  her belongings, Latona gave tenant access to the storage unit on April 13,
  2005.
   
       ¶   3.   Tenant filed this action, alleging illegal eviction, breach
  of the covenant of quiet enjoyment, intentional infliction of emotional
  distress, breach of the warranty of habitability, violation of the Consumer
  Fraud Act (FN2), and violation of the Landlord-Tenant Act.(FN3)  A jury
  trial was held.  At trial, tenant presented evidence of her agreements with
  Latona and Robson; her rent payments (tenant admitted that some payments
  were late); the extent to which she was present at or absent from the
  mobile home; the state of the mobile home and her possessions on the last
  day she was on the premises before Latona entered; and the state of the
  mobile home and her possessions after Latona had been inside.  Tenant
  presented the testimony of the police officer that tenant had contacted
  after she discovered that her possessions were no longer in the mobile
  home.  The police officer described his conversation with Robson about
  tenant recovering her belongings, and the fact that tenant had to obtain a
  court order before she was able to access her belongings.

       ¶   4.   At the close of tenant's evidence, landlords presented a
  number of motions, including for judgment as a matter of law on tenant's
  claim under the Consumer Fraud Act.  The superior court granted judgment in
  favor of landlords on the claim, concluding that, although the CFA can be
  applied to landlord-tenant transactions generally, tenant had nonetheless
  offered no evidence that landlords were "covered persons" under the Act. 
  The superior court determined that tenant was required to prove that
  landlords were sellers as defined under the CFA-in this case, persons
  regularly and principally engaged in the business of renting property to
  consumers-and had not presented any evidence in support of this
  requirement.  See 9 V.S.A. § 2451a(c) (defining term "seller" for purposes
  of CFA).
   
       ¶   5.   Landlords next presented their evidence, which tracked the
  position set forth in their opening statement.  There they argued that they
  had not violated landlord-tenant law because plaintiff had already
  abandoned the mobile home at the time Latona entered and removed her
  belongings.  Landlords presented evidence that tenant was gone from the
  mobile home for thirty-two to thirty-three days in a row; Latona tried to
  reach her by telephone at the mobile home but was unable to; Latona went to
  the home with the intention and plan of removing her belongings, which he
  had discussed with Robson; Latona found the window broken and tenant's
  electronic equipment missing when he entered the mobile home; and he
  removed tenant's other personal belongings, placed them in storage, and
  changed the lock on the mobile home.  With regard to these actions, Latona
  testified, "I was advised that it was an abandoned dwelling, and I was
  doing what the law states in the book under abandoned dwellings." 
  Landlords also presented the theory that they did not deny plaintiff access
  to certain of her possessions-i.e., valuable items such as televisions and
  a DVD player-because those items had been stolen by whoever had broken into
  the trailer by breaking the window.  Landlords did not deny that they had
  changed the lock on the mobile home and that they had taken tenant's
  personal belongings and put them in storage; nor did they contest that
  tenant had to obtain a court order to access her belongings in storage.  In
  fact, Robson conceded that he told tenant that she would have to get a
  lawyer to get her things back. 

       ¶   6.   At the close of landlords' evidence, tenant moved for a
  directed verdict on landlords' defense that tenant had abandoned the home
  such that landlords were permitted to enter it without her consent.  The
  superior court denied the motion, concluding that the evidence was mixed on
  the point and that a reasonable jury could find in favor of either party on
  the issue.  The jury was charged and given a set of interrogatories drafted
  by the parties through which to render the verdict.
   
       ¶   7.   After deliberations, the jury returned a verdict in favor of
  landlords.  On the special verdict form returned by the jury, however, the
  jury indicated that while it did not find that landlords had illegally
  evicted tenant, neither did they find that tenant had abandoned the mobile
  home such that entrance onto the premises by landlords would be
  permissible.  Tenant moved for a new trial, arguing that it was
  inconsistent for the jury to find for landlords when the jury had also
  rejected landlords' only defense: the allegation that tenant had abandoned
  the property before Latona entered the mobile home on March 23, 2005.  The
  superior court granted the motion, applying Vermont Rule of Civil Procedure
  49(b), which permits the court to order a new trial when answers to
  interrogatories in a special verdict form create an inconsistency. 
  Landlords filed this appeal.

                                     I.

       ¶   8.   On appeal, landlords argue that the jury's answers to the
  special interrogatories can be reconciled and that the superior court erred
  in granting a new trial.  We review the superior court's decision to grant
  a new trial under Rule 49(b) for an abuse of discretion.  Johnson v. United
  Postal Service, 2006 VT 57 ¶10, ___ Vt. ___, 904 A.2d 1089 (mem.).(FN4)  
  The parties' positions can be summarized as follows.  Tenant argues--and the
  superior court agreed--that, because landlords' only defense against the
  claim of illegal eviction was their assertion that tenant had abandoned her
  property prior to March 23, 2005, it was inconsistent for the jury to find
  that tenant had not abandoned the property and also that landlords were not
  liable for illegal eviction.  Landlords argue that the jury could have
  found that the claim of illegal eviction failed for any number of reasons,
  including a failure of proof on the elements of the claim, and that the
  jury's verdict should be accepted as submitted.
   
       ¶   9.   The jury was instructed as follows on the law of illegal
  eviction and the defense of abandonment (FN5):  

         Vermont law prohibits a landlord from directly or indirectly
       denying a tenant access to any possession of the tenant['s]
       rented or leased premises or property, except through proper
       judicial process.

       . . . .

         [I]n some instances, a landlord may enter a leased premises
       when three criteria are met showing abandonment by the
       tenant.

         Number one, if there are circumstances that would lead a
       reasonable person to believe that the leased premises are no
       longer occupied by the tenant[] as his or her full-time
       residence.

         And, number two, the rent is not current.

         And, number three, the landlord has made reasonable efforts
       to ascertain the tenant's intention.

       . . . .

         If all three of the criteria have been proven by the evidence
       in this case, then you may find that the tenant did legally
       abandon the premises.  If, however, any one or two of these
       factors have not been proven, then you may not find that the
       plaintiff abandoned this trailer.

       . . . .

         If, however, you find the abandonment criteria have not been
       met and the defendants denied plaintiff access to the mobile
       home or her property therein, then you may find that the
       defendants illegally evicted the plaintiff, and they may be
       liable for damages incurred as a result of the illegal
       eviction.

  Landlords argue that the jury could have found, as an alternative, that
  tenant failed to prove the positive elements of her claim-in particular,
  that landlords denied her access to the mobile home or her possessions. 
  This theory is simply untenable in light of landlords' position at trial
  and the state of the evidence.  In short, landlords conceded that they
  entered tenant's home, removed her personal belongings, placed them in
  storage until tenant obtained a court order, and changed the locks on the
  mobile home.  Given these admissions, the jury's findings that tenant had
  not abandoned the property but also that landlords had not committed an
  illegal eviction are inconsistent, and the superior court did not abuse its
  discretion in ordering a new trial.  See V.R.C.P. 49(b) (requiring either a
  new trial or further deliberation by jury where answers to special verdict
  interrogatories are inconsistent); Prouty, 143 Vt. at 454, 470 A.2d at 1155
  (noting that Rule 49(b) provides trial court with explicit options when
  jury returns inconsistent verdict).

                                     II.

       ¶   10.   In her cross-appeal, tenant argues that the superior court
  erred in granting landlords' motion for judgment as a matter of law on
  tenant's claim under the Vermont Consumer Fraud Act.  Tenant argued that
  landlords had acted deceptively by structuring the rental as an installment
  purchase of the property "as is," thus relieving landlords of their duties
  to maintain a habitable premises.  Tenant also argued that landlords
  generally abused and harassed her.  In ruling on the motion, the superior
  court acknowledged that a jury could find that landlords had engaged in
  deceptive practices, and that the  Act applied to landlord-tenant
  transactions as a general proposition.(FN6) See L'Esperance v. Benware,
  2003 VT 43, ¶14, 175 Vt. 292, 830 A.2d 675 (recognizing that landlord may
  be held liable under Vermont Consumer Fraud Act).  Nonetheless, the court
  concluded that tenant was required to prove that landlords were "sellers"
  as defined by the Act: persons "regularly and principally engaged in a
  business of selling goods or services to consumers."  9 V.S.A. § 2451a(c).
  The superior court further concluded that there was no evidence upon which
  a reasonable jury could conclude that tenant had proved this element of her
  claim.  The court's interpretation of the CFA is a legal question which we
  review de novo.  Human Rights Comm'n v. Benevolent & Protective Order of
  Elks, 2003 VT 104, ¶13, 176 Vt. 125, 839 A.2d 576.

       ¶   11.   The superior court's reasoning is undermined by the plain
  language of the CFA, as well as our case law interpreting the Act.  The
  "central provision" of the Act makes "[u]nfair methods  of competition in
  commerce, and unfair or deceptive acts or practices in commerce, . . .
  unlawful."  Elkins v. Microsoft Corp., 174 Vt. 328, 330, 817 A.2d 9, 12
  (2002) (quoting 9 V.S.A. § 2453(a)).  The CFA allows this prohibition to be
  enforced as follows:

       Any consumer who . . . sustains damages or injury as a result
       of any false or fraudulent representations or practices
       prohibited by section 2453 of this title . . . may sue for
       appropriate equitable relief and may sue and recover from the
       seller, solicitor or other violator the amount of his damages
       . . . .

  9 V.S.A. § 2461(b).(FN7)  It is true that, while the CFA defines the term
  "seller," it does not define the terms "solicitor" or "other violator." 
  Carter v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998).  The
  significance of this omission, however, is simply that we afford those
  undefined terms their plain meaning. 
   
       ¶   12.   This is the approach we took in Elkins.   There we held that
  "other violator" was "a broad term" encompassing defendants in that case
  who were not "sellers" of  "goods or services" under the statutory
  definitions of those terms.  174 Vt. at 331-32, 817 A.2d at 13.  The
  specific issue in that case was whether a consumer could sue an "indirect
  seller" under the CFA-for example, the manufacturer of a product that was
  sold wholesale to a third party who then sold the product to the consumer. 
  We determined that under the plain meaning of the statutory language, there
  was no privity requirement-that is, no requirement that the defendant sold
  goods or services directly to the plaintiff.  Id.  We concluded that
  attributing a broad scope to "[t]he plain meaning of the ["other violator"]
  language" was supported by "the express legislative intent behind the
  statute to 'protect the public' against 'unfair or deceptive acts or
  practices' and to 'encourage fair and honest competition.' " Id. at 331,
  817 A.2d at 13 (quoting 9 V.S.A. § 2451) (further citations omitted).  The
  plain meaning of "other violator" is anyone engaged in an unfair or
  deceptive commercial practice in violation of the CFA's prohibition on such
  activity.  Stated another way, our focus in determining applicability of
  the CFA is the nature of the alleged violator's activities, not whether the
  violator falls into a defined statutory category.

       ¶   13.   This interpretation is supported by the express purpose of
  the CFA: "to 'protect the public' against 'unfair or deceptive acts or
  practices' and to 'encourage fair and honest competition.' "  Id. at 331,
  817 A.2d at 13 (quoting 9 V.S.A. § 2451) (further citations omitted).  "In
  light of this purpose, this Court has repeatedly held that the VCFA is
  'remedial in nature' and therefore must be construed 'liberally so as to
  furnish all the remedy and all the purposes intended.' " Id. (citations
  omitted).  As we emphasized in Elkins, "[t]he Legislature clearly intended
  the VCFA to have as broad a reach as possible in order to best protect
  consumers against unfair trade practices."  Id.  Construing the CFA
  liberally, as we must, there is no basis for categorically excluding
  landlords in this case from the range of potential defendants under the
  CFA, given the court's conclusion that there was evidence landlords had
  engaged in unfair and deceptive commercial practices.  The superior court
  should have permitted the claim to proceed.

                                    III.
   
       ¶   14.   Finally, tenant also challenges the superior court's
  decision not to grant a directed verdict on the issue of abandonment. 
  Specifically, tenant asserts that even if landlords presented evidence that
  she no longer occupied that mobile home as a full-time residence and that
  her rent payments were not current, landlords did not provide adequate
  support for the third element of the abandonment defense: that they made a
  reasonable effort to determine tenant's intentions before entering the
  mobile home.  See 9 V.S.A. § 4462(a) (setting forth elements of defense of
  abandonment).   In reviewing a trial court's decision on a motion for
  directed verdict, we view the evidence in the light most favorable to the
  nonmoving party and exclude the effect of all modifying evidence.  Hunter
  Broad., Inc. v. City of Burlington, 164 Vt. 391, 393, 670 A.2d 836, 838
  (1995).  At trial, landlords testified that they attempted to reach tenant
  by telephone before entering the mobile home.  Viewing this evidence in the
  light most favorable to landlords, we cannot conclude that "there is no
  legally sufficient evidentiary basis for a reasonable jury to find for
  [landlords] on that issue."  V.R.C.P. 50(a)(1).

       Affirmed in part, reversed in part, and remanded for further
  proceedings consistent with this decision.


       FOR THE COURT:



       _______________________________________
       Associate Justice

----------------------------------------------------------------------------------
                                  Footnotes

  FN1.  Justices Burgess sat for oral argument but did not participate in
  this decision.
       

  FN2.  Specifically, 9 V.S.A. § 2453(a) prohibits "[u]nfair methods of
  competition in commerce, and unfair or deceptive acts or practices in
  commerce."

  FN3.  Specifically, 9 V.S.A. § 4463 prohibits a landlord from denying a tenant
  access to and possession of the leased premises and tenant's personal
  property in the absence of judicial process.


  FN4.  Landlords argue that our review is de novo, citing Prouty v.
  Manchester Motors, Inc., 143 Vt. 449, 453, 470 A.2d 1152, 1154 (1983).  The
  cited passage, however, is dicta.  Furthermore, it is unclear whether the
  statement in Prouty that "the issue in this case is one of law" refers to
  the trial court's decision denying a new trial or its decision entering
  judgment for the plaintiffs.  Johnson is the more recent and more clear
  precedent, and is consistent with our application of the abuse of
  discretion standard to the decision whether to grant a new trial under Rule
  59.

  FN5.  Neither tenant nor landlords objected to the jury instructions at the
  time or challenge them on appeal.  Further, the instructions accurately
  state the law as codified in 9 V.S.A. §§ 4462-4463. 

  FN6.  The superior court did not analyze or rule on whether landlords had
  engaged in deceptive practices or whether any such practices occurred "in
  commerce" under the CFA.  Rather, the court noted in passing that there was
  some evidence of deceptive practices, but ultimately focused on the
  definition of "seller" under the statute as the basis for granting summary
  judgment on the claim.  Because the superior court did not address the
  other elements of a CFA claim, we need not decide today how these elements
  should be applied in the landlord-tenant context.  Our holding is limited
  to the conclusion that a plaintiff need not prove that a defendant is a
  "seller" to maintain a claim under the CFA.

  FN7.  The legislative history of the private-enforcement provision
  demonstrates that the scope of potential plaintiffs and defendants under
  the CFA was deliberately broadened over time.  Originally, the CFA's
  prohibitions could be enforced only by the Attorney General.  See 1967, No.
  132, § 1.  In 1969, however, the Act was amended to permit a private cause
  of action, thus allowing individual consumers to sue when they are damaged
  by deceptive practices.  See 1969, No. 45, § 7.  The language was further
  broadened in 1973, when the private enforcement provision-which originally
  limited the range of possible defendants to a "seller" or "solicitor"-was
  amended to allow consumers to sue "other violators" as well.  See 1973, No.
  110, § 5.
