Ferris v. Loucka, No. 114-2-15 Wncv (Teachout, J., June 25, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 114-2-15 Wncv

LOUIS FERRIS                                                                                           on appeal from
     Defendant–Appellant                                                                               Docket No. 463-9-14 Wnsc

           v.

MATTHEW LOUCKA
    Plaintiff–Appellee

                                                   SMALL CLAIMS APPEAL
                                                          Decision


       This is a residential landlord–tenant dispute on appeal from a small claims judgment in
favor of Tenant Matthew Loucka. Mr. Loucka claimed, and the Small Claims Court found, that
Landlord Louis Ferris improperly withheld his security deposit after the end of the tenancy
because he failed to provide Mr. Loucka with timely written notice of the reasons for any such
withholding. Judgment was entered for Mr. Loucka for the value of the security deposit plus
costs. Mr. Ferris has appealed, contending that Mr. Loucka did not vacate the apartment when
he claims to have. Mr. Loucka did not cross-appeal.

        In an appeal from a Small Claims Court judgment, it is not the function of the Superior
Court to substitute its own judgment for that of the Small Claims Court Judge. See Whipple v.
Lambert, 145 Vt. 339, 340–41 (1985). Rather, the role of the Superior Court is to determine
whether the evidence presented at the hearing supports the facts that the Judge decided were the
credible facts, and whether the Judge correctly applied the proper law and procedure.

        The lease expired on May 31, 2014. The gist of Mr. Loucka’s testimony was that he had
effectively taken up residence elsewhere by the beginning of May, during May he cleared out
and cleaned up the leased premises, and he returned the key and vacated before the end of May.
Mr. Ferris’s letter explaining that the security deposit would be withheld is dated June 25, 2014.

        Mr. Ferris was not present at the small claims hearing. Instead, his agent, Mr. Audette,
was present and testified. Mr. Audette principally handles maintenance issues at Mr. Ferris’s
rental properties. Mr. Audette testified that Mr. Loucka had left his “stuff” in the apartment well
into June even if he was by then living elsewhere. The implication in the testimony was that the
tenancy should be considered to have continued while the stuff remained there. Mr. Audette did
not dispute that the key had been returned as Mr. Loucka asserted.

       The evidence on exactly what date the landlord knew or should have known that Mr.
Loucka had vacated was unclear. The Small Claims Judge found that the latest possible date was
June 4. There was no written statement of withholding within the two ensuing weeks. On that
basis, the Small Claims Court ruled in favor of Mr. Loucka. The Court did not address whether
the bases for withholding otherwise were reasonable.

        The applicable law is clear: “If a landlord fails to return the security deposit with a
statement [itemizing deductions] within 14 days [after the tenant vacated], the landlord forfeits
the right to withhold any portion of the security deposit.” 9 V.S.A. § 4461(e). The Small Claims
Court properly ruled in Mr. Loucka’s favor because Mr. Ferris did not deliver such a written
statement within that two-week period.

        The Small Claims Court’s finding that Mr. Loucka vacated the apartment on or before
June 4 is supported by the evidence. The evidence was clear that, by then, Mr. Loucka was
living somewhere else, had returned the key, and had some communications with Mr. Audette to
the effect that he would need to leave some property behind and no longer wanted it. It is not
clear whether the possessions left behind were more substantial than what Mr. Loucka claims to
have discussed with Mr. Audette. There was no evidence, however, that any abandoned property
was so substantial as to reasonably indicate his continuing occupancy of the apartment.

        In his memorandum to the court filed March 23, 2015, Mr. Ferris appears to attempt to
give new information to the court. Such information cannot be considered. The hearing was the
opportunity to present all evidence pertinent to the case, and new evidence cannot be introduced
after the hearing.

       The evidence that was presented at the hearing sufficiently supports the judgment that
was issued.


                                            ORDER

       For the foregoing reasons, the judgment of the Small Claims Court is affirmed.

       Dated at Montpelier, Vermont this ____ day of June 2015.


                                                    _____________________________
                                                    Mary Miles Teachout
                                                    Superior Judge




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