Grandview Acres Condo Assoc. v. Trudo, No. S0191-05 CnC (Norton, J., Apr. 28, 2005)

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STATE OF VERMONT                                                          SUPERIOR COURT
Chittenden County, ss.:                                               Docket No. S0191-05 CnC



GRANDVIEW ACRES CONDO ASSOCIATION

v.

MICHAEL TRUDO and MARK LETOURNEAU



                                              ENTRY

        This matter concerns a second appeal of a small claims decision awarding $3,560 in
damages and fees to the plaintiffs, Michael Trudo and Mark Letourneau. In the first appeal,
defendant Grandview Acres Condo Association argued that the small claims court erred by
holding it automatically responsible for repair expenses that the plaintiffs incurred in replacing
their windows because of a mold problem. This court remanded for findings on whether the
plaintiffs followed proper procedures in undergoing repairs to their windows or in seeking
reimbursement for these repairs.
        In its first hearing, the small claims court determined that the windows were common
areas and were the responsibility of the condo management association under its bylaws.
Grandview Acres did not contest this finding in the first appeal. This court nonetheless noted in
dicta that it agreed with this finding. See Trudo v. Grandview Acres Condo Assoc., No. S1211-
04 CnC, slip op. at 2 n.1 (Dec. 10, 2004) (Norton, J.). Now in its second appeal, Grandview
Acres argues that the small claims court’s finding regarding the windows was erroneous. It also
argues that the small claims court’s finding with regard to how the plaintiffs proceeded by
repairing the windows at their own expense and demanding payment was also erroneous. Finally,
Grandview Acres argues that the evidence was insufficient to support the small claims court
findings regarding damages.
       With respect to whether the windows were common areas, the court declines to decide
this issue. For reasons of judicial economy, it is inappropriate to raise on a second appeal what a
party could have raised in an earlier appeal. Courts have labeled this prudential rule as either
“forfeiture” or “waiver,” but in any event, the underlying policy is to promote the efficient
adjudication of a matter through the appellate process, rather than to create piecemeal appeals
that extend a dispute unnecessarily. See 18B C. Wright et al., Federal Practice and Procedure §
4478.6, at 820–27 (2002). Courts recognize exceptions to the forfeiture or waiver rules, as for
example where the issue not raised is a matter of subject matter jurisdiction, which can be raised
at any time, see United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997), or a matter that the
party would have had little incentive to raise because of its status as an appellee in the prior
appeal, see, e.g., Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995). But
here, Grandview Acres offers no such reason for failing to raise this issue in its first appeal. The
court notes that the small claims court rules of procedure emphasize the informality of small
claims court. V.R.S.C.P. 1 (“These rules shall be construed to secure the simple, informal, and
inexpensive disposition of every action subject to them.”). But a small claims appellant with
$3,560 at stake has no reason not to raise an issue that it disputed before the small claims court in
its first hearing. See Trudo, No. S1211-04 CnC, slip op. at 2 n.1. Accordingly, the court
considers Grandview Acres’ first argument forfeited.
        Turning to the second issue, Grandview Acres argues that the plaintiffs did not seek
approval from the Grandview Acres Board of Directors for the replacement of windows and the
glass sliding door. Therefore, the Board never had an opportunity to review and approve the
suggested replacements.
       This court’s standard of review on small claims appeals is one of high deference. Small
claims court findings “must be construed, where possible, to support the judgment” and the
procedural informality of small claims does not authorize an appellate court to make its own
substantive findings. Kopelman v. Schwag, 145 Vt. 212, 214 (1984).
        Here, Grandview Acres’s argument contests the small claims court’s factual findings.
The small claims court found that the plaintiffs were not required to submit a request for
approval after being expressly told (erroneously, as it turned out) that Grandview Acres did not
need to cover window replacement costs. When they found out that the windows were covered as
common areas, the plaintiffs submitted a letter to the Grandview Acres Board seeking reim-
bursement. This was as much as the Board’s informal procedures required, as the small claims
court reasonably found from the evidence taken on remand. This court does not find any error in
these findings. The court’s primary concern in its first appellate decision was to ensure that the
plaintiffs did not engage in self-help at the expense of procedures established by Grandview
Acres for seeking reimbursement. The small claims court findings adequately meet this concern.
        Finally, Grandview Acres argues that the evidence that the plaintiffs provided to the
small claims court regarding the amount of damages was inadequate. Grandview Acres argues
that some kind of bill or invoice was necessary to assess damages. This court disagrees. The
Vermont Rules of Small Claims Court Procedure provide that, where the case is tried before a
trial court judge, “evidence is admissible if it is of a type commonly relied upon by reasonably
prudent persons in the conduct of their affairs, and the Vermont Rules of Evidence are
inapplicable except for the rules respecting privilege.” V.R.S.C.P. 6(b). Moreover, as noted
above, the rules emphasize the simple, informal, and inexpensive disposition of claims.
V.R.S.C.P. 1. Accordingly, testimonial evidence regarding the cost of the plaintiffs’ windows
was adequate to support the small claims court findings.
       The small claims court judgment is AFFIRMED.


       Dated at Burlington, Vermont, April 28, 2005.


                                                                       ________/s/____________
                                                                                         Judge




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