Schmitt v. Force, No. 357-7-10 Wmcv (Wesley, J., Mar. 10, 2011)

[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
Windham Unit                                                                               Docket No. 357-7-10 Wmcv


Erik Schmitt
       Plaintiff - Appellant

           v.

Lisa Force
       Defendant - Appellee


                      ORDER DENYING PLAINTIFF’S SMALL CLAIMS APPEAL

        Plaintiff Erik Schmitt appeals a decision rendered by the small claims court, Acting Judge
Walter G. French, on June 7, 2010, finding in favor of Defendant Lisa Force and dismissing
Plaintiff’s complaint in its entirety. The complaint arose out of a failed romantic relationship
between Schmitt and Force, encompassing along its way various elements of landlord/tenant,
contract, and tort law. After the romantic relationship ended in acrimony, and Force moved out
of Schmitt’s home, Schmitt sought back-rent from Force, the cost of replacing the carpet in
Schmitt’s home due to damage allegedly caused by Force’s pet dog, and payments related to a
joint purchase the two made of a mattress that is now in Schmitt’s sole possession. Judge French
held in favor of Defendant Force, finding that the rental agreement between the parties was
illusory, the damage, if any, caused to the carpet by Force’s pet was caused while Schmitt was
jointly responsible for the dog and thus could not be attributed to Force, and the purchase
agreement for the mattress was unconscionable and would no longer be enforced. Schmitt now
appeals these determinations on various grounds. As discussed below, the Court rejects all of
Appellant’s claims of error and AFFIRMS the decision of the Small Claims Court.

Discussion

The Small Claims Decision

           At the conclusion of the hearing, Judge French made the following findings of fact:

       At some point in time in 2009, Erik Schmitt and Lisa Force began dating. They
eventually moved in together, residing in Schmitt’s home. Force’s pet dog also moved into the
home. Subsequently, the two entered into a written landlord/tenant arrangement in December,
2009. The lease agreement stated that Force would rent a partially furnished room in Schmitt’s
home for $400 a month.

       However, Schmitt voluntarily supported Force financially during the time they were
together as romantic partners and collected no rent. Instead, the parties verbally agreed that
Force would use a room in the home as a sewing room in exchange for housework, which she
made use of for 3 months. Schmitt claims he could have otherwise rented the room for $350.
Schmitt also did not collect a deposit from Force, although the lease agreement specified that a
deposit would be collected upon execution of the agreement.

        While Force’s pet dog resided in Schmitt’s home, both Schmitt and Force shared joint
responsibility for the animal’s care. On occasion, the animal would urinate on the carpet, causing
damage to the carpet and flooring beneath it. Schmitt obtained an estimate for the costs of
replacing the carpet in his home and for painting the wood beams below the floor. Force
contended that the carpet was already in need of replacing prior to the time she and her dog
moved in to the home as other dogs had previously lived in the home, there was significant
damage to the carpet resulting from previous flooding, and because the house was used as a
“party house” while it was in foreclosure. The carpet had not been replaced after Schmitt
purchased the home.

        In late November, 2009, the parties purchased a mattress from a retail furniture store in
Brattleboro, Vermont for approximately $1,200. Subsequent to this purchase, the parties signed
what was titled “Financial contract for a joint purchase.” In this document, the parties agreed to
make payments towards a financing agreement with the retail store in order to pay off the
mattress purchase.

       The “joint purchase” document stated that the items purchased would be the joint
property of both parties for as long as they resided together. However, if the relationship ended,
Force agreed to forfeit her ownership of all of the items, and the items would become the sole
property of Schmitt. Force, however, would still be responsible for paying her outstanding debt.

        In or around April of 2010, Schmitt obtained a Relief From Abuse (RFA) order against
Force. As a result of the RFA, Force was forced to vacate the home she shared with Schmitt.
Despite the RFA, Schmitt and Force kept in contact in order to determine a way for Force to
retrieve her belongings. Schmitt voluntarily dropped the Relief from Abuse order so that he
could help Force move her belongings out of the house.

       As a result of these circumstances, Schmitt sought from Force $1,400 in unpaid rent,
$1,500 to replace and repair carpeting and flooring, and $309 towards the joint purchase of the
mattress. Judge French made the following conclusions of law during the small claims hearing:

        Overall, Judge French found it to be “unusual” that such written documents purporting to
be binding contracts were present in a relationship stemming from a romantic association.
Indeed, the actions of the parties throughout the time they were together indicated to the court
that so long as all was well in the relationship, the parties seemed content to let things stand as
they were, and not resort to the terms of the ‘contracts’ they entered into.

        Judge French found the contract for the joint purchase of the mattress to be unenforceable
as it was unconscionable. The ‘contract’ provided for Schmitt to retain ownership of the items in
case the relationship and co-habitation ended, but still obligated Force to maintain payments on
the mattress. Judge French noted that a contract which presupposes that a romantic relationship



                                                 2
will end and which then provides for one party to receive a complete windfall upon such an
occurrence is highly suspect. Moreover, the mattress and other items were already purchased
prior to the execution of the contract, which calls into question the voluntariness of Force’s
assent or whether there was any consideration for her promise. The Court ruled that Schmitt can
keep the mattress and any payments already collected from Force, but that Force would no
longer be liable for any future payments.

        With respect to the residential lease agreement, Judge French held it to also be void and
unenforceable. As an offshoot of the romantic relationship, the Court deemed suspect Schmitt’s
claim that the lease was a voluntary agreement with separate support in the mutual
understandings of the parties. The Court found Force’s account credible when she stated that
Schmitt assured her that there was no need to rent the sewing room to a third party, and that
Schmitt would accept housework in lieu of rental payment from Force. The Court found that
Force did in fact provide such housework prior to the filing of the RFA by Schmitt, which
constructively evicted Force from the home. Moreover, the lease was executed after the two had
already been co-habitating, and almost a month after the two entered into the “mattress contract.”
Additionally, Schmitt did not collect a rental security deposit from Force as stipulated in the
lease, which further indicated to the Court that this was not a serious landlord/tenant
arrangement, and thus should not now, after the relationship has failed, be enforced.

        Judge French also found that Schmitt suffered no out of pocket expenses by virtue of
holding onto his ex-girlfriend’s property after she was effectively evicted from the home.
Indeed, there was no one renting the room at the time of the hearing, suggesting to the court that
the ability to find a tenant while Force’s belongings were being held by Schmitt was speculative.
Further, any costs relating to the storing of such property is best characterized as yet another
predictable result of a failed relationship, rather than a legal obligation that Defendant was
required to remit.

        Lastly, the Court determined that the pet dog was the joint property of the two parties
while it resided in Schmitt’s home. The Court found that had the relationship not failed, the
damage the dog caused would have been overlooked by Plaintiff. However, because the
relationship did not succeed, the Court did not find it appropriate to now permit Schmitt to use
the dog and any alleged damage it caused as a way to extract payments from Force to replace a
carpet and flooring, which, as the evidence suggests, was likely already highly damaged prior to
the time Force moved in.

Standard of Review

        The scope of a Superior Court’s ability to review a determination of the Small Claims
Court is limited. “The appeal is limited to questions of law,” and more specifically, whether the
trial court applied the correct principles of law. V.R.S.C.P. 10(d).

        Further, the appeal must be “based on the record made in the small claims court.” 12
V.S.A. § 5538. The Superior Court must accept the factual findings of the Small Claims Court
unless they are clearly erroneous. Bartley-Cruz v. McLeod, 144 Vt. 263, 264 (1984). As long as
there is substantial evidence to support a trial court’s finding of fact, deference must be ascribed



                                                 3
to that determination. “The evidence must be examined in the light most favorable to the
prevailing party, and the effect of any modifying evidence must be excluded.” Jarvis v. Koss,
139 Vt. 254, 254-55 (1981).

         Moreover, the determination of credibility of witnesses is exclusively a matter for the
trier of fact. Lockwood v. Bougher, 145 Vt. 329, 331 (1985). Indeed, when the evidence is
conflicting, the credibility of the witnesses, the weight of the evidence, and its persuasive effect
are questions for the trier of fact, and its determination must stand if supported by credible
evidence, even where there may be inconsistencies or substantial evidence to the contrary.
Gilbert v. Davis, 144 Vt. 459, 461 (1984).

Analysis

        Schmitt raises numerous issues on appeal, all of which are without merit. First, Schmitt
contends that the judgment should be reversed because he believes Judge French imposed limits
on his ability to introduce evidence. Schmitt contends that Judge French should have permitted
him to present additional evidence concerning e-mails about the carpet and sewing room after
Judge French returned from his deliberations. The Court finds that this contention is without
merit as there is nothing in the record to indicate that any unfair restraints were placed on
Schmitt’s ability to introduce evidence. Indeed, at the close of Schmitt’s case-in-chief, Judge
French asked him if he had anything else to add, to which Schmitt responded “No, that’s it.”
Later on, after Schmitt was allowed to rebut Force’s presentation, Judge French concluded by
again asked whether Schmitt had anything more to add, to which Schmitt either did not reply or
said ‘no’ to, as the transcript is not entirely clear at this point of the tape. Whatever the exact
response may have been, there is nothing present in the record to indicate that Judge French
improperly expedited or hurried the proceedings, or otherwise acted in any way which prevented
Schmitt from being given a fair opportunity to fully present his case. Judge French was within
his discretion to refuse to consider more evidence after he had already deliberated, and after
asking Schmitt multiple times whether he had anything further to add.

       Moreover, Judge French stated that a significant amount of evidence had already been
presented by both sides which was more than sufficient for him to render a well-informed and
sound ruling. See State v. Muscari, 174 Vt. 101, 117 (2002) (explaining that judges may impose
reasonable limits on the scope of cross-examination when the relevance of the questioning
becomes marginal or attenuated).

        Schmitt further claims that had he been able to introduce certain e-mail correspondence
between the parties into evidence, the Court would have better understood his motivations and
reasons for acting in the manner that he did. Schmitt asserts that the Court would have been less
suspicious of the overall contractual arrangements between Schmitt and Force. However, as
stated above, the Court finds no indication that Schmitt was in any way prevented from
presenting this evidence at the hearing. If in fact Schmitt had such evidence to present, there
were numerous opportunities for him to do so, either in his case-in-chief, or during his rebuttal to
Ms. Force’s presentation. Since an appeal must be “based on the record made in the small
claims court,” 12 V.S.A. § 5538, the Court will not now consider evidence that Schmitt did not,
despite having ample opportunity to do so, present at the hearing.



                                                  4
         Plaintiff’s second general complaint is an allegation of improper conduct by the court-
appointed mediator, as well as the Small Claims Judge. Schmitt suggests that the mediator was
partial to Force and had improper communications with Judge French prior to the hearing.
Moreover, Schmitt alleges that the mediator passed notes during the hearing to Force while
sitting next to her during the hearing. The failure of the mediation, for whatever reason, would
not have been properly before the Court at trial, and is not a proper subject for review. V.R.E.
408 (offers of compromise not admissible); 12 V.S.A.§ 5720 (confidentiality limits of mediation
process). Further, a judicial officer is presumed to be unbiased, and disqualification would have
required a demonstration of bias by affirmative facts, accompanied by a proper motion for
disqualification under V.R.C.P.40(e). Ball v. Melsur Corp., 161 Vt. 35 (1993). Appellant’s
allegations of improper judicial communication with the mediator prior to the hearing, having
not been preserved by raising them at the time of trial, renders the claim unreviewable on appeal.
See In re Wal-Mart Stores, Inc., 167 Vt. 75, 87 (1997) (facts outside record cannot be considered
on appeal).

        Schmitt next takes issue with Judge French’s determination that the arrangement between
Schmitt and Force was “suspicious.” As stated above, this Court has limited discretion to review
determinations made by the Small Claims Court. Here, such a credibility determination made by
Judge French is strictly within the sole purview of the fact finder and will not be disturbed by the
reviewing court on appeal. Lockwood v. Bougher, 145 Vt. 329, 331 (1985). Schmitt’s contention
is directed at the measure of evidence supporting Judge French’s judgment. It is apparent that
the testimony at the hearing was conflicting. It was, therefore, for the trier of fact to resolve the
underlying issues of credibility, and without a showing that the result he reached was without
evidentiary support, it must stand. Stearns v. Sugarbush Valley Corp., 130 Vt. 472, 474-75
(1972); Davis v. Schaad, 135 Vt. 254 (1977).

        Schmitt further argues that Judge French should not have found that the lease agreement
was invalid and unenforceable. The existence of an agreement is a question of fact, which
depends, in part, on the reasonable inferences that may be drawn from the facts of the case.
Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444. Here, the evidence introduced by the parties
clearly supported Judge French’s findings. For one, the lease agreement was signed by the
parties well after they had moved in together. Furthermore, Plaintiff collected no security
deposit from Defendant. Whether or not this was an arrangement that both parties seriously
sought to be enforceable is clearly in doubt based on the facts surrounding the relationship.
When the evidence is conflicting, the weight of the evidence and its persuasive effect are
questions for the trier of fact, whose determination must stand if supported by credible evidence.
Gilbert v. Davis, 144 Vt. 459, 461 (1984). Consequently, Judge French’s factual determination
that the contract was void is sufficiently supported by the evidence in the record and will stand.

       Schmitt next contends that he should be compensated by Force for having to store her
property in one of the rooms of his house which he claims he could have otherwise rented out.
However, Judge French made findings on the record that the contract was void and
unenforceable, thus any legal right to storage fees under the lease agreement or landlord/tenant
common law would be inapplicable. Indeed, the court found that the relationship between
Schmitt and Force was far more akin to a romantic living arrangement whereby legal obligations



                                                 5
that are inherent in landlord/tenant arrangements are simply not in play. This Court finds that
this determination by Judge French to be sound and not an abuse of discretion.

        Schmitt next attempts to clarify certain testimony he made at the hearing which he alleges
Judge French “unfairly characterized” concerning Schmitt’s so-called ‘suspicious’ choices made
in connection to the RFA he obtained against Ms. Force. However, whatever Schmitt’s
motivations may have been at the time, this is not the proper stage of the proceeding to introduce
this evidence for the very first time. Indeed, Schmitt’s attempts to “clarify” his testimony have
no place on appeal. Schmitt was given more than an adequate opportunity to present all relevant
evidence, articulate the motivations of his actions, and to even rebut Ms. Force’s case-in-chief.
The Court will not now entertain new evidence and arguments here on appeal.

         Similarly, Schmitt chronicles in his appeal memorandum how he feels he is being
punished for his generosity, after determining that it would be in Force’s best economic interests
for her belongings to remain in his home after he filed the RFA against her, rather than be placed
in storage. However, it is not the role of this Court to judge the generosity of parties, or to make
other determinations of credibility. As alluded to above, such a finding can only be made by a
trier of fact

        Schmitt next objects to findings made by Judge French concerning the pet dog that
resided with Schmitt and Force, which allegedly caused damage to the carpet that Schmitt seeks
replacement costs for. Specifically, Schmitt objects to the Court’s determination that the dog
was the joint responsibility of the parties, and also seeks to introduce new evidence which
supposedly establishes that Force had previously agreed to contribute to the cost of replacing the
carpet. These grounds for appeal are wholly without merit. Judge French made a factual
determination that the dog was jointly cared for by the parties which will not be disturbed by this
Court absent clear abuse of discretion. Here, the mere fact that Schmitt permitted Force to move
in along with her dog while the two were in a romantic relationship strongly suggests that
Schmitt assumed responsibility for the animal. Further, the Court at this stage simply cannot
take into consideration new evidence that was not introduced during the hearing below.
Accordingly, Judge French’s conclusion will be upheld.

        Lastly, Schmitt asks this Court to reverse Judge French’s determination that the joint
purchase of the mattress was unconscionable and void. Schmitt alleges that Judge French made
incorrect conclusions based solely on the date of the contract and a single provision that was
more favorable to him than to Ms. Force. As a matter of law, the proper inquiry in determining
if an agreement is unconscionable is whether there is evidence of some overreaching on the part
of one of the parties such as that which results from an inequality in bargaining power or under
other circumstances in which there is an absence of meaningful choice on the part of one of the
parties, together with contract terms which are unreasonably favorable to that party. Maglin v.
Tschannerl, 174 Vt. 39, 45-46 (2002). Here, Judge French determined that, due to the suspect
nature of the circumstances surrounding the arrangement, there was serious doubt raised as to
whether Force had a meaningful choice when signing this agreement, i.e., the fact that the
contract was signed after the mattress was already purchased and after the parties had already
moved in together. Furthermore, the contract terms are clearly unreasonably favorable to the
party enjoying the superior bargaining position, in that Schmitt is awarded sole possession of the



                                                 6
mattress in the event that the parties break up, while Force, nevertheless, remains liable for
making payments on a possession for which she must forfeit all claims of ownership regardless
of the circumstances attending the failed relationship. Indeed, in light of the findings of undue
influence arising from the parties’ domestic relationship, the mattress arrangement affords a
textbook example of an unconscionable contract. Judge French was clearly within his discretion
when he rendered the contract unconscionable and void and his decision will not be overturned.

       WHEREFORE, it is hereby ORDERED:

      Plaintiff’s Small Claims Appeal is DENIED, and the decision of the Small Claims Court
is AFFIRMED.

       Dated at Newfane this 10th day of March, 2011.



                                             _____________________________
                                             John P. Wesley
                                             Superior Court Judge




                                                7
