2013 VT 7


Vermont Small Business
Development Program v. Fifth Son Corporation, Henzel,
Mad Partners, LLC and Pierson (2012-070)
 
2013 VT 7
 
[Filed 25-Jan-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2013 VT 7 

 

No. 2012-170

 

Vermont Small Business
  Development Corporation


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Civil Division


 


 


Fifth Son Corporation, J.
  Michael Henzel, 
Mad Partners, LLC and Chris Pierson


October Term, 2012


 


 


 


 


Michael
  S. Kupersmith, J.


 

Chris Pierson of Mad Partners, LLC, Pro
Se, Waitsfield, Appellant.
 
J. Michael Henzel
of Fifth Son Corporation, Pro Se, Charlotte, Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.  Appellant landlord appeals a partial summary
judgment order concluding that his eviction of appellee tenant from a property
was wrongful, as well as the trial court’s ruling on a post-trial motion that
tenant was not liable to landlord for rent that accrued post-eviction. 
Because landlord’s notice of default was defective, and because a wrongful
eviction releases a tenant from liability for rent accrued post-eviction, we
affirm.
¶ 2.            
Mad Partners, LLC and Chris Pierson (collectively, lessor) leased a restaurant
and residential condominium to defendants Fifth Son Corporation and J. Michael Henzel (collectively, lessee) for a two-year period
beginning January 1, 2009.  Until March 2010, lessee operated a restaurant
called “Miguel’s at Sugarbush” in the leased
commercial building, and stayed in the condominium irregularly.  
¶
3.            
Lessor and lessee signed two separate leases, one for the restaurant and
one for the condominium, but each lease provided that default on either one
would allow lessor to exercise default rights under both.  The leases
differed, however, in how lessor was to give notice if he wished to exercise
such rights.  Article XI of the restaurant lease provided that in the case
of an “Event of Default,” which included nonpayment of rent for a specified
period,
Lessor . . .
may give written notice to Lessee specifying the occurrence giving rise to such
Event of Default . . . and stating that this Agreement and
terms hereby demised shall expire and terminate on the date specified in such
notice, which shall be at least twenty (20) days after the giving of such
notice . . . .
It
went on to describe how lessee could cure the default before that specified
date.  
¶
4.            
Article 5 of the condominium lease, by contrast, provided:
  If the Lessee
shall neglect or fail to perform any of its covenants, and in particular if any
monthly installment of rent be overdue and unpaid, the Lessor may, immediately
or at any time thereafter, give notice pursuant to State statutes for Lessee to
vacate the premises . . . .
¶
5.            
Article XIII of the restaurant lease contained a “survival clause,”
whereby:
  No expiration of
the term of this Lease or repossession of the Leased Premises by reason of an
Event of Default shall relieve Lessee of its liability and obligations under
this Lease, all of which shall survive any such expiration or
repossession.  
That same article contained a provision for liquidated
damages.  It continued:
  In the event of
any such expiration, Lessee shall be liable to Lessor for, and shall pay to
Lessor, as and for liquidated and agreed damages for Lessee’s default . . . . 
The liquidated damages included the “total accelerated unpaid
portion of the rent,” as well as interest, court costs, and attorney’s fees. 
¶
6.            
Lessee fell behind on the rent payments, and as of March 5, 2010, was in
default on both leases.  On that date, lessor sent what was characterized
as a notice of default on both leases to lessee’s address by certified
mail.  It is not clear why the Postal Service’s three attempts at delivery
on March 6, 16, and 22 failed, but whatever the reason, notice was either not
accepted or not received by the lessee, and the Postal Service eventually
stamped the envelope “unclaimed.”  After having learned about the failed
delivery, lessee called lessor to discuss it.  Although details of the
conversation are not in the record, lessee apparently learned that he was about
to be evicted from both properties.  Lessor and lessee disagree as to
whether and/or when lessee requested that the notice be emailed to him. 
¶
7.            
There is no disagreement, however, as to the form and content of the
notice, which was emailed to lessee on March 28, 2010, and submitted into evidence. 
The notice referenced both leases and informed lessee that he was “in default”
of each.  It did not provide a date of termination or give any details as
to the alleged default.  It reminded lessee that he had the opportunity to
bring the lease payments current.  
¶
8.            
On March 28, 2010—the same day that he emailed the notice—lessor locked
lessee out of both premises.  After that date, he did not allow lessee to
access the properties to retrieve any items.  This action began when the Vermont
Small Business Development Corporation (VSBDC) filed suit against both lessor
and lessee based on a default on a loan to lessee.  Lessor
then cross-claimed against lessee for rent, damages, utility costs, interest,
and attorney’s fees.  Lessee, in turn, cross-claimed against lessor
for lost profits due to a wrongful eviction and conversion of personal property
left on the premises.  The suits by VSBDC settled as to both defendants,
but the case between lessor and lessee continued.
¶
9.            
The superior court granted partial summary judgment to lessee, holding
that lessor had wrongfully evicted lessee from the premises.  The rest of
the claims were tried before a jury.  After evidence was presented, the
court entertained for the first time the question of whether lessee was liable
for rent for the restaurant property for the remaining period of the lease—that
is, for post-eviction rent.  We do not have transcripts of the trial
testimony and events, but the trial court’s order on the resulting motion
states that the issue was first raised by lessee’s counsel.  Lessor
submitted a memorandum in which he conceded that lessee was not liable for
post-eviction rent on the condominium, but argued that under Article XIII of
the restaurant lease, lessee was liable for post-eviction rent on that
property.  Lessee similarly submitted a memorandum, taking the opposite
position with respect to the restaurant lease.  During the charge
conference, the court decided not to give a clear legal instruction on this question
to the jury,[1]
including instead: “[Lessors] claim they are entitled to full satisfaction of
all obligations under the entirety of the [restaurant] lease contract. 
You will calculate [lessor]’s damages as what you determine to be the total
amount of unpaid rent and utilities.”  However, the court advised both
parties that it would entertain a motion for judgment as a matter of law on
this issue after the verdict.
¶
10.        
The jury awarded lessor past rent and past utility costs for both the
restaurant and the condominium, but did not award damages for nonpayment of
post-eviction rent or utility fees for either property.  It also declined
to award damages to lessee for the wrongful eviction, for lessor’s failure to
return the security deposit, or for punitive damages, for either
property.  
¶
11.        
As had been discussed during the charge conference, lessor filed a
post-trial motion asserting that the trial court erred in failing to instruct
the jury that lessor was entitled to prospective rent or damages for loss of
post-eviction rent under the restaurant lease, and further that the jury
miscalculated damages for both properties.  The trial court denied the
motion on both bases.  
¶
12.        
Lessor appeals both the partial summary judgment order finding that the
eviction from the restaurant was wrongful[2]
and the finding on the post-trial motion that lessee was not liable to lessor
for post-eviction rent or for liquidated damages under the restaurant lease.[3]  We review a summary judgment order
using the same standard as the trial court.  Richart v. Jackson,
171 Vt. 94, 97, 758 A.2d 319, 321 (2000).  Summary judgment is
appropriate when, taking all allegations made by the nonmoving party as true,
there are no genuine issues of material fact and the movant is entitled to
judgment as a matter of law.  V.R.C.P. 56(c); Richart, 171 Vt. at 97, 758 A.2d at 321. 
The question of liability for post-eviction rent after a wrongful eviction is a
legal question that we review de novo.  See Breslin
v. Synnott, 2012 VT 57, ¶ 8, ___ Vt. ___, 54 A.3d 525.
¶
13.        
We first address whether the trial court correctly ruled on summary
judgment that lessor’s eviction of lessee from the restaurant was wrongful.
¶
14.        
Lessor locked lessee out of both properties on March 28, 2010. 
Lessor had mailed the notice of default on March 5, 2010.  Lessor relies
on Article XI of the restaurant lease, which provides that the termination date
“shall be at least twenty (20) days after the giving
of . . . notice [of default],” in combination with Article
XXIV of the lease, which states that “[a]ny notice
herein required or permitted to be given shall be deemed given if and when
mailed . . . properly addressed to the party to whom such
notice is given,” to assert that lessee had until March 25, 2010 “to cure the
lease or prepare to vacate the property.”  In lessor’s understanding, then,
he had a right to evict lessee from the restaurant when he did so on March 28,
2010, and the trial court should not have granted summary judgment on the issue
of wrongful eviction from that property.  Lessor makes two arguments on
appeal: (1) the notice of default itself was not defective under the restaurant
lease; and (2) lessee waived his argument that the notice was defective under
the restaurant lease by not accepting delivery of the notice of default. 
As lessor did not raise the second argument during summary judgment proceedings,
we need take up only the first.  See Lane v. Town of Grafton, 166
Vt. 148, 153, 689 A.2d 455, 457 (1997) (“Failure to raise a reason why summary
judgment should not be granted at the trial level precludes raising it on
appeal.”)
¶
15.        
Our law is clear on the necessity of strict compliance with terms in a
lease in order to effectuate an eviction: “In Vermont, when a lease expresses
an agreement with regard to notice of termination, the time, mode and manner of
such notice must conform to the agreement.”  Deschenes
v. Congel, 149 Vt. 579, 583, 547 A.2d 1344, 1346
(1988); see also Archambault v. Casellini-Venable Corp., 115 Vt. 30, 32, 49 A.2d 557,
558 (1946) (“When a lease expresses an agreement for notice, the time, mode and
manner must conform to it.”).  With respect to the termination of
residential leases, we have followed the trend in other jurisdictions to
require “punctilious compliance with all statutory eviction procedures,
including notice provisions.”  In re Soon Kwon, 2011 VT 26, ¶ 14,
189 Vt. 598, 19 A.3d 139 (quotation omitted).  There is no reason to
require less “punctilious compliance” with terms of a lease providing for
notice in the nonresidential context.  Therefore, we must evaluate whether
the notice provided by lessor conformed to the terms of the restaurant lease
quoted above.
¶
16.        
Clearly, it did not.  The notice of default was defective in two
ways.  First, although the terms of the restaurant lease clearly require
lessor to “specify[] the occurrence giving rise to
[the] Event of Default,” it failed to do so.  Second, although the
restaurant lease provides that the notice must “stat[e] that this Agreement and
terms hereby demised shall expire and terminate on the date specified in
such notice,” lessor did not specify any such date.  (Emphasis
added.)  Lessor argues that “the date specified” should be assumed to be
March 25, 2010, because that is twenty days after the date of the letter, March
5, 2010.  However, the lease states that the date of termination must be “at
least twenty (20) days after the giving of such notice.” (Emphasis
added.)  We cannot read that language as setting the date of termination
at twenty days after the date of the notice.  We agree with the trial
court that the notice of default for the restaurant lease was defective.
¶
17.        
Under the terms of the lease, proper termination requires a valid notice
to terminate.  Because the notice of termination of the restaurant lease
was defective, we affirm the trial court’s finding on summary judgment that
lessor’s eviction of lessee from the restaurant was wrongful.
¶
18.        
The second issue on appeal is whether the trial court erred by not
giving an instruction to the jury that lessee was liable to lessor for rent due
under the restaurant lease for the period between the wrongful eviction and the
end of the lease term.  As discussed above, the jury instructions read, in
pertinent part: “[Lessors] claim they are entitled to full satisfaction of all
obligations under the entirety of the [restaurant] lease contract.  You
will calculate [lessor]’s damages as what you determine to be the total amount
of unpaid rent and utilities.”  The jury declined to award damages for
nonpayment of rent for the period after the eviction.  Lessor argues on
appeal, as he did in his post-trial motion, that the trial court should have
instructed the jury that lessee was liable for rent during that period. 
He bases his argument (1) on the “survival clause” in Article XIII of the
restaurant lease that states that “[n]o expiration of the term of this Lease or
repossession of the Leased Premises by reason of an Event of Default shall
relieve Lessee of its liability and obligations under this Lease, all of which
shall survive any such expiration or repossession,” and (2) on the clause in
that same Article providing for liquidated damages in the amount of all unpaid
rent in the event of default.
¶
19.        
The trial court rejected lessor’s position primarily based on the
holding of Powell v. Merrill, 92 Vt. 124, 103 Vt. 259 (1918).  The
issue in Powell was identical to the issue here—whether the landlord
could collect post-eviction rent from a commercial tenant when the eviction was
wrongful.  This Court answered that the wrongful eviction suspended the
landlord’s right to collect rent, drawing on decisions from the English courts
and courts around this country.  Id. at 127, 103 A. at
260-61.  Finding the eviction to be wrongful, we affirmed a decision to
deny the landlord post-eviction rent.  Id. at 129, 103 A. at 261.
¶
20.        
Lessor’s answer is that lease terms can vary the common law rule
expressed in Powell, and that occurred in this case.  We can find
no precedent that would allow collection of future rent based on a wrongful
eviction because of language in a lease, particularly language allowing
recovery of future rent as liquidated damages.  There are, however, cases
to the contrary.  See Bryan v. Vaughn, 579 S.W.2d 177, 181 (Mo. Ct.
App. 1979) (“[T]he lease ended by the wrongful act of plaintiffs, constituting an
eviction, and in such circumstances plaintiffs are in no wise entitled to
liquidated damages.”); Benderson v. Poss, 530 N.Y.S.2d 362, 363 (App. Div. 1988);  Cox’s
Bakeries of N.D., Inc. v. Homart Dev. Corp., 515
S.W.2d 326, 329-30 (Tex. Ct. App. 1974) (“We are not overlooking the provision
in the lease to the effect that the tenant’s default could give rise to a
termination of his right of possession without relieving him of his obligation
for unaccrued rentals.  However, reliance by the
landlord upon this lease provision cannot be justified unless it be shown that
he was not guilty of wrongful eviction . . . .”); see also Fuel
Mktg, Inc. v. Petroleum Realty Inv. Partners, 601
S.E.2d 125, 127 (Ga. Ct. App. 2004) (even after lawful eviction, landlord cannot
collect liquidated damages award based on future rent).   As the
trial judge observed, allowing liquidated damages when a landlord unlawfully
terminates a tenancy “would give Lessor the unilateral right to terminate at
any time for any reason regardless of any default and impose a large
penalty on Lessee.”  Such a result would be unjust in any case; it is
particularly unjust where the lessor terminates the tenancy by denying access
to the business property and thereby prevents the lessee from earning income to
pay the rent.
¶
21.        
Even if we were to find that lease terms can make Powell
inapplicable, we would not do so in this case.  We not only agree with the
Court of Appeals of Georgia that such a provision would have to be “ ‘an
explicit and detailed provision . . . which clearly and
unequivocally expressed the parties’ intention to hold the lessee responsible
for after-accrued rent even should an eviction take place,’ ” Fuel
Marketing, Inc., 601 S.E.2d at 127 (quoting Bentley-Kessinger,
Inc. v. Jones, 367 S.E.2d 317, 318 (Ga. Ct. App. 1988)), but furthermore
conclude that the provision would have to cover clearly and unequivocally an
unlawful eviction.  Lessor believes that the survival clause’s extension
of liabilities under the lease and provision for liquidated damages in the
circumstance of “repossession . . . by
reason of an event of default” is such a provision.  However, Article XI,
which defines “event of default,” also includes the requirements for
terminating the lease by reason of such an event—requirements with which lessor
failed to comply, as we held above.  We cannot hold that the language of
Article XIII “clearly and unequivocally” covers an unlawful eviction. 
Consequently, where lessor did not properly terminate the tenancy, he is entitled
neither to rent for the premises after the wrongful eviction nor to a large
liquidated damages award based upon lessee’s default in paying past rent. 
We conclude that there was not a “repossession of the Leased Premises by reason
of an Event of Default” as required by Article XIII.  Accordingly, we
uphold the trial court decision that lessor cannot collect post-eviction rent,
whether labeled as such or as liquidated damages.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
What transpired is set out in lessor’s post-trial motion of December 1,
2011.  Lessee has not disputed the representation of the events. 
There is no transcript of the charge conference.  


[2] 
Although lessor argued during the summary judgment proceedings that the notice
of default was proper as to the condominium lease as well, he concedes on
appeal that it was not, and that the eviction from the condominium was
therefore wrongful. 
 


[3] 
Lessor also includes a section in his brief in which he disputes testimony
presented by lessee at trial regarding a purported oral proposal to modify the
contracts to allow lessee to pay less rent.  He states that lessee did not
present any evidence that lessor ever assented to his proposal, so “[lessor]
cannot be deemed to have been bound by [lessee]’s proposal.”  He refers
particularly to testimony by lessee that the security deposits were reallocated
to rent in arrears.  
 
The trial court never found that there had been such
an oral agreement, so it is unclear to what error lessor is referring, beyond
perhaps allowing the jury to hear such argument.  As this section of the
appeal does not cite any error by the trial judge in a ruling or explain on
what basis this testimony should have been excluded, we need deal with it no
further.  
 
Lessor makes an additional argument in his brief that
the jury’s computation of past rent for both the restaurant and the condominium
was wrong.  He made the same argument in the post-trial motion.  The
trial court properly ruled that the issue had not been preserved, and we will
also not address this issue.



