Hart v. Bradford, No. 286-12-13 Oecv (Teachout, J., July 28, 2014)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                                CIVIL DIVISION
Orange Unit                                                                                             Docket # 286-12-13 Oecr


JAMES HART, TRUSTEE of the
JAMES H. HART REALTY TRUST,
    Appellant
                                                                                                       On appeal from
           v.                                                                                          Docket # 21-1-13 Oesc

TOWN OF BRADFORD,
    Appellee


                                                   SMALL CLAIMS APPEAL
                                                          Decision

       James Hart, Trustee of the James H. Hart Realty Trust, Plaintiff in the Small Claims case
below, appeals from a judgment of the Small Claims Court dated October 11, 2013. The Small
Claims Court entered judgment below for the Defendant, the Town of Bradford, on Plaintiff’s
claim that the Town damaged Plaintiff’s property when a piece of heavy Town equipment
cleared snow on Plaintiff’s property, and that the Town improperly listed Plaintiff in the Town
Report for nonpayment of taxes.

      Mr. Hart represented himself in the Small Claims Court and on appeal. Attorney Charles
Merriman represented the Town in the Small Claims Court and on appeal.

      This Court has reviewed the record, listened to the tape recording of the full hearing held
in Small Claims Court on October 11, 2013, reviewed all motions and documents filed in both
the Small Claims Court and this Court, and heard oral argument on April 11, 2014.

        Preliminarily, it should be noted as a general matter that 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 or not the Judge correctly applied the proper law and procedure, and whether
or not Court rulings are consisted with the record evidence. See id.

           With this standard in mind, the Court proceeds to review the four issues raised on appeal.
                                           Appeal Issues

Whether the Small Claims Judge improperly denied Plaintiff’s Motion to Continue the hearing.

        The hearing was completed on October 11, 2013. After all evidence had been presented,
both the Plaintiff and Defendant’s lawyer made complete closing arguments, after which the
Judge announced his findings and conclusions on the record. See Clark’s Truck Center v. Smith,
2009 VT 80, ¶ 8, 186 Vt. 284 (“The judge must either issue a written decision, or make findings
of fact orally on the record after the close of evidence, state the relevant conclusions of law, and
enter a judgment.”) (citing V.R.S.C.P. 6(a)). The oral record shows that after the decision was
announced, Plaintiff requested additional time to file an affidavit from another person, Reginald
Bishop, who had not been presented as a witness at the hearing. Judge Lewis denied the request,
and stated that he “would have been” happy to hear Mr. Bishop’s testimony, but that the hearing
was over.

       Twelve days later, on October 23, 2013, Plaintiff filed what he referred to as a motion to
reconsider and attached thereto was an affidavit from Mr. Bishop. That motion was denied by an
Entry Order on November 14, 2013. Thereafter, on December 9, 2013, Plaintiff filed a written
motion to continue, in which he again asked the Court to reopen the case to hear more evidence,
including the affidavit from Mr. Bishop. In an Entry Order on December 13, 2013, Judge Lewis
denied the motion and referenced that the merits hearing was held on October 11, 2013.

                The Vermont Rules of Small Claims Procedure permit a party to file a motion for
continuance of trial, which will be granted “only for good cause.” V.R.S.C.P. 4(d). It is
unnecessary for this Court to address whether such a motion may be properly filed after
judgment has already been entered on the record because, in any event, Plaintiff failed to
demonstrate “good cause” as to why he did not procure the testimony of Mr. Bishop prior to the
close of evidence. See In re Odessa Corp., 2006 VT 35, ¶ 17, 179 Vt. 640 (mem.) (explaining
that parties are responsible for securing the attendance of their own witnesses, and that trial court
rulings on motions for continuances will be upheld if there is a reasonable basis for the action).
It was not clearly unreasonable for the Judge to decline to reopen the evidence to take testimony
from a newly offered witness, either at the hearing after the decision was announced, or in
response to Plaintiff’s motion to continue, filed almost two months later. Gazo v. Gazo, 166 Vt.
434, 447 (1997).

       Indeed, small claims hearings are meant to be efficient and parties are expected to have
their witnesses present at the scheduled hearing. See Clark’s Truck Center, 2009 VT 80, ¶ 7
(“[T]he purpose of Vermont’s small claims court proceedings is to provide ‘a simple, informal,
and inexpensive procedure’ for determining smaller civil actions.”) (quoting 12 V.S.A. §
5531(a)). There was no error in the ruling, and it does not support reversal of the judgment.

       While mentioned in his appeal papers, Plaintiff’s notice of appeal does not expressly
reference his motion to reconsider. However, if Plaintiff is appealing the denial of that motion,
and to the extent Plaintiff’s motion to continue could be more accurately characterized as a
motion to reconsider, this Court first notes that V.R.S.C.P. 4 sets forth the “only motions
permitted” in small claims proceedings and does not provide a mechanism by which parties may

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move to reconsider or to otherwise reopen the evidentiary record. Moreover, even if the relief-
from-judgment provisions of Rule 60 of the V.R.C.P. apply to small claims proceedings, it
would be incumbent upon Plaintiff to demonstrate that the affidavit of Mr. Bishop was “newly
discovered evidence which by due diligence could not have been discovered in time to move for
a new trial under Rule 59(b).” V.R.C.P. 60(b)(2). As explained above, Plaintiff has failed to
make this demonstration.


Whether the Small Claims Judge improperly ruled inadmissible exhibits and affidavits offered by
Plaintiff.

         This was identified as an issue in Appellant’s Notice of Appeal. In his appeal
memorandum he refers to affidavits of himself and Mr. Bishop that were not allowed into
evidence. Plaintiff also refers to “an abundance” of pictures of destruction that a 15’ bulldozer
would do,1 and claims that “[m]any exhibits” were not admitted. In small claims proceedings, if
a trial is conducted by the court, as it was here, the Vermont Rules of Evidence do not apply and
“evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in
the conduct of their affairs.” See V.R.S.C.P. 6(b). This Court finds with respect to Plaintiff’s
own affidavit that the Judge correctly determined it would be more appropriate for Plaintiff to
provide live testimony as to the matters referenced in the affidavit. See id. 6(a) (“All witnesses
will testify under oath and will be examined by the judge with the objective of laying out the
evidence pertaining to the contentions reasonably available to the parties.”). The second
affidavit, of Mr. Bishop, did not even exist at the time of trial—it was neither signed by Mr.
Bishop nor filed with the Court until several days after entry of judgment. Furthermore, even if
the affidavit were available at trial, it would have been within the Judge’s discretion to deny its
admittance in lieu of Mr. Bishop’s testimony. See id.

        As for the “[m]any exhibits” not admitted into evidence, it is unclear, both from the
record below and plaintiff’s appeal, what specific exhibits he claims were wrongfully excluded.
The allegation is generalized. Appellant has not identified particular exhibits and reasons those
exhibits should have been admitted. It is well settled that to preserve an argument for appeal, a
party must present an argument with specificity and clarity. See Rutland Herald v. Vermont
State Police, 2012 VT 24, ¶ 33, 191 Vt. 357 (2012). Additionally, what the record below does
reveal is that Plaintiff, as required in small claims proceedings, was given a full and fair
opportunity to present competent evidence on the issues raised in his complaint. See Ferris-
Prabhu v. Dave & Son, Inc., 142 Vt. 479, 481 (1983) (remanding a small claims action where the
court did not permit the plaintiff to elaborate on the basis for his claimed damage figure).

       A four-hour hearing was held, with no limitations on Plaintiff’s opportunity to call
witnesses. Specifically, Plaintiff testified on his own behalf and called the following individuals
as witnesses: the Town of Bradford Selectboard Chair Thomas Unkles; former Selectboard
Assistant Jessica Bean; Town Clerk Marianne McClure; Town Treasurer Jennifer Rivers; former
Town Treasurer Henrietta Powers; and Town Road Foreman Phil Page. Plaintiff also submitted
a number of exhibits that were admitted into evidence, including a survey map, a box with the

1
  At trial the size of the piece of equipment was disputed, and it was also disputed whether it was a bulldozer or a
front loader.

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broken spotlight and lighting harness allegedly damaged by Defendant, and a series of
photographs purportedly depicting Plaintiff’s damaged property. To the extent any submitted
evidence was not ultimately admitted, there is no indication that this substantially affected
Plaintiff’s right to a full and fair opportunity to present his case.


Whether the Small Claims Judge improperly refused to permit the testimony of Mr. Bishop.

         The record is clear that Mr. Bishop was not present and not called as a witness to give
testimony at the hearing. Appellant’s argument that the case should have been reopened to hear
his testimony is addressed above.


Whether the findings of the Court were supported by the evidence.

        Judge Lewis delivered his decision orally on the record at the conclusion of the hearing
on October 11, 2013. Judgment was entered for the Defendant on the issue of publication of
Plaintiff’s name in the Town Report on the basis of evidence that Plaintiff’s taxes were not fully
paid by the due date. On the claim for property damage from Town equipment, Judge Lewis
ruled that there was conflicting evidence, and that due to the ambiguity in the evidence about
what did or did not happen, Plaintiff had failed to adequately demonstrate liability on the part of
the Defendant for the damages alleged. Upon request for reconsideration by Mr. Hart after
judgment was entered, Judge Lewis clarified that he was not making a finding that the Town’s
witnesses established the truth, but rather his ruling was that Plaintiff had not met the required
burden of proof.

        Plaintiff acknowledged throughout the hearing and in his appeal memoranda that there
was conflicting testimony. He argues fervently that the Town’s witnesses were not credible.2
However, the Small Claims Court, acting as the trial court, has the sole responsibility for
determining the weight of evidence and credibility of witnesses. See Whipple v. Lambert, 145
Vt. 339, 340–41 (1985). On appeal, this Court “must review the evidence in the light most
favorable to the prevailing party, excluding the effects of any modifying evidence, and accept the
findings of the trial court unless clearly erroneous.” Id. at 341. “In no event will [this Court]
substitute [its] judgment on questions of fact for that of the trial court.” Id.; see also Emmons v.
Emmons, 141 Vt. 508, 511 (1982) (“Upon appellate review, we will not interfere if a reasonable
evidentiary basis supports the court’s findings and the findings are sufficient to support the
conclusions of law”).

        This was a highly contentious hearing with serious allegations of lack of credibility on
both sides. Judge Lewis was not required to determine what the truth was about the incident
under discussion, or who was or was not telling the truth. His role was to determine whether or
not, taking into account all the evidence, Plaintiff introduced sufficient credible testimony to

2
  In his appeal papers, Plaintiff notes that the Town’s witnesses were able to testify at trial “without any discovery.”
However, as stated above, the Vermont Rules of Evidence did not apply to this proceeding. See V.R.S.C.P. 6(b);
see also Cold Springs Farm Development, Inc. v. Ball, 163 Vt. 466, 469 (1995) (“Many of the civil rules, including
those authorizing discovery, do not apply in small claims court.”).

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meet the applicable burden of proof, which was proof by a preponderance of the evidence. He
determined that the Plaintiff had not proved his claims.

       His ruling that the evidence was too “ambiguous” to support a conclusion that Plaintiff
proved his claim by a preponderance of the evidence is consistent with the state of the evidence
presented at the hearing and, accordingly, this Court will not disturb the Judge’s decision and
Judgment.

                                                 Order

       For the reasons set forth herein, the judgment entered by the Small Claims Court on October
11, 2013 is affirmed.

       Dated this 25th day of July, 2014.

                                                                ________________________
                                                                   Mary Miles Teachout
                                                                   Superior Court Judge




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