Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-235

                                         APRIL TERM, 2016

 Michael Rinaldo                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Green Mountain Self Storage and Jim O’Dell            }    DOCKET NO. 332-8-13 Bncv

                                                            Trial Judge: John P. Wesley

                          In the above-entitled cause, the Clerk will enter:

          Plaintiff appeals the court’s decision granting judgment for defendant Jim O’Dell. We
affirm.

        Plaintiff filed suit against defendants Green Mountain Self Storage and Jim O’Dell
regarding belongings of his in several storage units. Plaintiff alleged that Green Mountain
illegally allowed his personal property to be sold from storage units rented under other names.
Plaintiff also asserted that he had belongings in a storage unit not rented in his name and
defendant O’Dell purchased the contents with the understanding that plaintiff would receive his
belongings. The trial court granted defendant Green Mountain’s motion for summary judgment
on the grounds that Green Mountain did not sell plaintiff’s property from the unit plaintiff rented
and had no duty to notice plaintiff regarding the sale of property in units owned by others.

        In a three justice order, this Court affirmed the grant of judgment in favor of Green
Mountain. See Rinaldo v. Green Mountain Self Storage, No. 2014-223, 2015 WL 196342 (Vt.
Jan. 9, 2015) (unpub. mem.). Because the court’s reasoning did not apply to the claims against
O’Dell, the judgment in favor of O’Dell was reversed and that claim was remanded.

        On remand, the trial court held a hearing on the merits of the claims against O’Dell.
Plaintiff appeared and testified. He stated that he had placed personal property in two storage
units not rented to him. When he saw the units were noticed for an auction sale, he went to the
auction. He saw O’Dell there and asked O’Dell to bid on the contents and in return promised to
pay O’Dell for the amount of the bid. O’Dell was the winning bidder, but plaintiff was forced to
leave before he could see the contents of the unit or retrieve property from O’Dell. He did not
repay O’Dell for the amount of the bid and did not receive any property from O’Dell. Plaintiff
could not itemize the contents of the units and admitted he did not know what was lost.
Defendant O’Dell did not appear at this hearing. In his answer, he admitted that he was at the
auction and bid on items in a unit, but denied making an agreement with plaintiff. He stated that
the items in the unit were worthless.
       The court found that plaintiff’s testimony regarding the agreement he made with O’Dell
was not credible and concluded that there was insufficient evidence to support a conclusion that
there was a contract between plaintiff and O’Dell. The court further concluded that, even if there
was a contract, plaintiff failed to demonstrate that he incurred any damages. Therefore, the court
entered judgment for defendant O’Dell. The court also subsequently denied plaintiff’s motion
for default judgment on the grounds that it was untimely filed and lacked a basis because,
although defendant O’Dell did not appear at trial, he did file an answer in the case. Plaintiff
appealed.

        Plaintiff’s appeal raises several arguments concerning Green Mountain’s actions in
noticing the sale, cleaning out the storage unit, and conducting the sale of items. Because
plaintiff’s claims against Green Mountain were fully adjudicated in the prior appeal and this
Court’s remand was specific to plaintiff’s claim against O’Dell, we do not address these
arguments. See Coty v. Ramsey Assocs., Inc., 154 Vt. 168, 171 (1990) (explaining that on
remand trial court is limited to following specific directions and law of case precludes
reconsideration of final decisions made by court of last resort).

        As to the claims against O’Dell, plaintiff argues that the court misapprehended the facts
and failed to give him adequate time to present his case. Because plaintiff has not ordered a
transcript of the proceeding below, we lack a proper record to review plaintiff’s claims regarding
the conduct of the proceedings or the sufficiency of the evidence. See V.R.A.P. 10(b)(1)
(requiring plaintiff to order transcript necessary for informed appellate review).

        Plaintiff also argues that the court committed error in granting judgment to O’Dell and
denying him a default judgment where O’Dell did not appear at the hearing. There was no error
in denying plaintiff a default judgment because where a party has appeared in a case, as O’Dell
did in this case by filing an answer, judgment can be entered only after a hearing with written
notice to the defendant. V.R.C.P. 55 (b)(4). Plaintiff had the burden of presenting evidence and
proving his case “just as if defendant had been present at trial.” Reuther v. Gang, 146 Vt. 540,
542 (1986). Plaintiff fails to demonstrate that the court erred in granting defendant judgment
based on the evidence submitted.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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