Chesery v. Zeno, No. 1268-03 Cncv (Katz, J., Mar. 8, 2004)



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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. 1268-03 CnCv



ALECIA CHESERY

v.

NEIL ZENO and
APM, INC.




                        FINDINGS OF FACT
                     CONCLUSIONS OF LAW AND
                       NOTICE OF DECISION




       This matter was tried to the court on February 17, 2004. On the
basis of the evidence presented, the following decision is announced.
                           FINDINGS OF FACT

1.      Plaintiff Chesery owned a house in Colchester, which required a
good deal of work—carpentry, painting, siding, pruning, yard work, snow
plowing, drainage. She hired defendant Zeno and his company,
Arrowhead Property Maintenance, to do all kinds of work, over a long
period of time. Something of a friendship ensued.

2.       Growing out of this relationship, Zeno several times asked
Chesery to make large purchases for him, as he had no credit but desired
expensive things. On this basis, she purchased a 40 inch television with
associated equipment for $5,342 and very expensive stereo equipment for
$5,053, both from The Superstore in Williston. Zeno was to make
payments on all these purchases. He never made one. She eventually
rolled the debt over onto a credit card, which she is still paying.

3.    On a similar basis, Chesery purchased a $9,459 commercial
lawnmower from Hertz Equipment. Again, Zeno was to make the
payments. This time he made one for $150.

4.     Chesery commenced suit against Zeno on October 17, 2003.
Much of the trial consisted of Zeno’s claimed setoff, that he did work for
Chesery for which he was not paid.

5.      Beginning in 1994, Chesery made regular payments to Zeno for
work that he had done or was about to do. Chesery submitted an
accounting of these payments extending to June 2003. Out of about 250
payments Chesery claims eighteen were made for work that was never
done. These payments total to $9,976. Counting only payments made
after October 17, 1997, however, creates a total of $5,464. In addition,
Chesery claims that she paid $2,300 to another contractor to finish siding
her house, a job that Zeno had been paid for and never completed.

6.       The setoff evidence focused on yard work in 2002, in which Zeno
took down a number of quite large trees in her backyard, cut them up, split
and stacked them. There is no dispute that he did this work. There was
quite a dispute in the evidence as to how long he worked at it. Chesery’s
recollection, although vague, was that he spent a total of about two weeks
doing it, stretched over perhaps a month.

       Zeno’s recollection was totally different. He appeared at trial with
“time sheets,” which he testified were “written daily in the cab of his
truck.” These time sheets struck the court as queer, because they
consisted of very neat, photocopied sheets. One would expect time sheets,
written daily, on the job site, in the cab of a pick-up truck to be anything
but. So the court requested the original. After looking, Zeno found the
original, but it possessed the same qualities as the photocopy, it did not
look like contemporaneous daily entries. Despite a healthy dose of
dissembling about “straight off the computer,” Zeno eventually admitted
“Can’t say this is the original time sheet made in truck. Not my writing.
Written by my wife, Candy Fay.”

         According to these daily “time sheets,” Zeno performed the tree
work involving a hydraulic boom on September 27, 28, and 29, 2002. A
little farther along, however, the evidence revealed that Zeno rented the
hydraulic lift for this work on September 13, 2002. It was delivered the
same day, and Zeno admitted having been notified of its delivery.
Reviewing the “time sheets,” however, revealed that from September 13,
the date of delivery of this expensive piece of rental equipment, Zeno was
not on the job for a full two weeks until the 27th. It makes no sense at all
that Zeno would have rented this expensive equipment and left it idle for a
two full weeks after delivery. Indeed, the payment amount of $373.80 on
the rental receipt suggests it was rented for only a brief period. The more
persuasive conclusion is that the time sheet documents are bogus. They
were prepared after the fact, possibly just for trial, and are entitled to no
evidentiary weight. It is undisputed that Zeno did clear the yard of trees
but also that he never submitted a bill for this work. Why would he have
put effort into daily time sheets, and then never billed? The answer is that
he never made “daily” time sheets. The time sheets constitute a
significant exaggeration of Zeno’s time on the yard clearing project. This
conclusion is also fully congruent with Zeno’s other, more recent dealings
with the plaintiff.

       The court is therefore wholly unpersuaded of Zeno’s $6,931 setoff
for yard clearing. Two weeks, 80 hours, at the agreed rate of $36, is
supported by plaintiff’s testimony, so that is the setoff we shall apply for
that work—$2,880.

7.     Chesery has made $6,992 in personal loans to Zeno, none of
which have been fully repaid.

8.       Zeno has made a total of $1,943 in payments to Chesery, one
payment of $150 on the lawnmower, and is entitled to a credit of $2,880
for the yard work, a total credit of $4,973.

9.      Chesery has sold the large television and some of the stereo
equipment on E-Bay, which we find a reasonable method of disposing of
the items, for which she received $2,810. The remaining stereo
equipment has not been sold. The best evidence at trial is that plaintiff
will probably net $500 from its sale.

10.      Chesery still possesses the commercial lawnmower, which is
listed for sale with a local merchant in such goods. Apparently, plaintiff
has something in the nature of a consignment relationship with that
merchant. The best evidence at trial is that plaintiff will probably net
$5,000 from its sale.



                         CONCLUSIONS OF LAW

11.     Although a party may testify falsely, or otherwise present false
evidence, the court is still required to make findings based upon the
preponderance of evidence. Mills v. Mills, 167 Vt. 567, 567–68 (1997)
(“The trial court has wide discretion to assess the credibility of witnesses
and to weigh the evidence before it . . .”); Lynda Lee Fashons, Inc. v.
Sharp Offset Printing, Inc., 134 Vt. 167, 170 (1976) (“The trial court is
bound to make findings of fact upon all material issues raised by the
pleadings and evidence.”). In a civil case, the court does not punish a
party for false evidence, although distrust of that party’s other evidence
may diminish recovery. Cf. State v. LaCourse, 168 Vt. 162, 163–64
(1998) (punishing false statements “under oath” in a criminal context).

12.      Under the statute of limitations, Chesery’s claims against Zeno
are limited to claims that arose within the six year period preceding her
complaint of October 17, 2003. 12 V.S.A. §§ 466, 511. While the bulk of
her claims easily fall within this period, the ten individual overpayments
prior to October 17, 1997 have expired. 12 V.S.A. § 511. Chesery can
still recover on the last eight payments she made to Zeno for work he did
not do.

13.     Based on Chesery’s testimony and evidence, we are persuaded
that Zeno breached his agreements with Chesery concerning the yard
work, siding, and repayments for loans, the lawnmower, the stereo, its
equipment, and televisions. As a result, Chesery is entitled to the
following from Zeno:

       $2,300— Siding Work
       $5,342— Television and equipment
       $5,053— Stereo and equipment
       $9,459— Lawnmower
       $5,464— Payments for work not done since October 1997
       $6,992— Loans

       $34,610— Subtotal

See McGee Construction v. Neshobe Development, 156 Vt. 550, 557
(1991) (citing to Restatement (Second) of Contracts § 347). Zeno is
entitled to the following credits for payments, work completed, and
mitigation. Estate of Sawyer v. Crowell, 151 Vt. 287, 294 (1989)
(discussing the duty to mitigate under general contract law).

       $4,973— Credit for work and payments
       $5,000— Current Value of Lawnmower
       $2,810— Value of electronics sold on ebay
       $500— Value of remaining stereo equipment

       $13,283— Subtotal

Thus Zeno’s liability is the amount owed, $34,610, minus the setoff
credit, $13,283, which creates an adjusted balance of $21,327. We
conclude that Chesery is due this amount from Zeno for his failure to
repay loans and perform work for which he had been paid.

14.       Chesery initially sought attorney’s fees under the provisions of the
Vermont Consumer Protection Act, 9 V.S.A. § 2461(b) for defendant’s
alleged violations of the Attorney General’s Rules for Debt Collection.
Atty. Gen. R. CF104 (adopted pursuant to 9 V.S.A. § 2453 (c)). At trial,
Chesery presented no evidence proving a violation of § 2453. Instead, her
evidence and testimony went to the amount of work Zeno had done for
her and how much he still owed her. Under the American Rule, parties
pay their own attorney’s fees. L’Esperance v. Benware, 2003 Vt. 43, ¶
21. While the Consumer Fraud Act does award mandatory attorney’s
fees, it requires a finding of fraud in violation of the act. Id. In this case,
Zeno and Chesery had an on-going contractual relationship. In essence,
Chesery agreed to use her credit to purchase items for Zeno who in return
promised to repay her or perform yard work. When Chesery attempted to
collect on these obligations, Zeno’s modus operandi appears to have been
a mixture of huffing and puffing. This is evinced by his various
counterclaims which have varied the setoff amount between $20,000 and
$7,000. Still, Chesery failed to show that Zeno’s attempts to assert his
setoffs violated the Rules against unconscionable, threatening, or
deceptive debt collecting. Cf. Atty. Gen. R. CF104 (outlawing misleading
debt collection practices).

15.      Chesery’s claim for attorney’s fees are likewise lacking under the
discretionary power to award fees against parties in “bad faith.” In re
Gadhue, 149 Vt. 322, 326 (1987). Gadhue represents a line of cases that
allow attorney’s fees as part of the award based on the equitable power of
the court when there has been significant wrong-doing by one party,
which has forced the other into extensive litigation. Id. at 327–28; see
also Albright v. Fish, 138 Vt. 585, 591 (1980) (declining to award
attorney’s fees for breach of restrictive covenant). In this case, Chesery
has not faced extensive litigation to clarify her rights and damages under
dispute. Cf. Gadhue, 149 Vt. at 328 (awarding attorney’s fees only after
defendant’s actions forced plaintiff to return to court to enforce her
previously declared rights). While Chesery has substantially prevailed in
her claims, she has not prevailed entirely. Her claims as well as Zeno’s
have been adjusted to reflect the evidence presented and the applicable
law. While Zeno has demonstrated a propensity against truth, he has not
acted to completely blot out Chesery’s rights or forced her through
prolonged litigation to establish them. This decision reflects less of an
assertion of rights and more of a clarification between the two parties and
as such must exclude any deviation from the American Rule.

      Based on the foregoing, plaintiff Chesery is awarded a judgment of
$21,327 against defendant Zeno.



       Dated at Burlington, Vermont, _________________, 2004.



                                            __________________________
                                                                 Judge
