Trillium Holdings LLC v. Buchanan et. al., No. 360-6-13 Wrcv (Teachout, J., Sept. 12, 2013).
[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
Windsor Unit                                                                            Docket No. 360-6-13 Wrcv

TRILLIUM HOLDINGS LLC,
    Plaintiff,

v.

AMANDA BUCHANAN and
JUSTIN HAGGARD,
     Defendants.

                                  DECISION
                  DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

        This matter is before the court on Defendants’ Motion for Summary Judgment,
filed July 18, 2013.

                                                           FACTS

         Trillium Holdings LLC (“Plaintiff”) owns real property located at 120 Main
Street, Springfield, Vermont (the “Property”). The Property includes several apartments
which Plaintiff rents out, including Apartment 5, which Plaintiff rented to Amanda
Buchanan and Justin Haggard (“Defendants”). Defendants owed Plaintiff $850.00 per
month as rent for the apartment.

        On May 8, 2013, after Defendants had failed to make their required rental
payments, Plaintiff delivered a notice of termination to Defendants by placing the notice
on Defendants’ table. At the time, Defendants were not in their apartment. They were
staying in Pittsford, Vermont, where they remained until May 17, 2013. Defendants did
not learn of the notice of termination until that date. The notice of termination listed May
24, 2013 as the date the termination would become effective.

        On June 11, 2013, Plaintiff filed the complaint in this action seeking payment for
unpaid rent, other incidental costs, and possession. Plaintiff moved for payment of rent
into court, and a hearing was scheduled for July 3, 2013. Defendants appeared that day
and did not challenge the validity of the termination of tenancy through a motion to
dismiss. Instead, they voluntarily accepted service of a Rent Escrow Order requiring
them to pay $1,388.00 by July 18, 2013 to avoid a writ of possession being issued in
favor of Plaintiff.
        Defendants filed their answer on July 18, 2013. Their answer included
counterclaims alleging that the eviction was retaliatory, Plaintiff had kept the apartment
in an unsafe condition, and Plaintiff owed money to Defendants.1

        Also on July 18, 2013, Defendants moved for summary judgment, claiming that
Plaintiff failed to provide actual notice of the termination of Defendants’ tenancy on May
8, 2013.2 According to Defendants, this failure meant that they did not learn of their
tenancy’s termination until May 17, 2013. Because the notice of termination identified
May 24, 2013 as the tenancy’s termination date, Defendants argued that they were not
provided with the 14 days notice required by 9 V.S.A. § 4467 and that they were
therefore entitled to summary judgment. Plaintiff failed to oppose this motion, but on
July 20, 2013 filed a motion to amend the complaint asserting that Defendants “were
delivered a termination notice via first class mail” on July 19, 2013, which terminated
Defendants’ tenancy on August 5, 2013. Mot. to Amend Compl. for Ejectment, p. 1.

         Defendants did not pay rent as required by the Rent Escrow Order. On July 23,
2013, Plaintiff filed a motion for writ of possession on the grounds that Defendants’
failure to comply with the Rent Escrow Order entitled Plaintiff to possession of the
apartment. The next day, on July 24, 2013, the court granted Plaintiff’s motion and
issued a writ of possession in its favor.

                                             ANALYSIS

        To prevail on a motion for summary judgment, a movant must demonstrate “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” V.R.C.P. 56(a). In ruling on a motion for summary judgment, the
court will take “all allegations made by the nonmoving party as true.” Richart v.
Jackson, 171 Vt. 94, 97 (2000). Here, Plaintiff did not oppose Defendants’ motion.
Although this reality could make summary judgment more likely, “the failure to respond
does not require an automatic summary judgment.” Miller v. Merchants Bank, 138 Vt.
235, 238 (1980).

        In their motion, Defendants argue that they are entitled to summary judgment
because Plaintiff failed to provide them with actual notice of the termination of their
tenancy at least 14 days before the termination date, as required by 9 V.S.A. § 4467.
(“The landlord may terminate a tenancy for nonpayment of rent by providing actual
notice to the tenant of the date on which the tenancy will terminate which shall be at least
14 days after the date of the actual notice.”) 9 V.S.A. § 4451 defines “actual notice” as
“receipt of written notice hand-delivered or mailed to the last known address.” 9 V.S.A.
§ 4451. In this case, Plaintiff delivered the notice of termination by entering Defendants’

1 These counterclaims were eventually dismissed because Defendants failed to pay the requisite fee when
filing their answer.
2
 Although Defendants’ memorandum of law identified the motion to dismiss standard as applicable to their
motion, the motion is better characterized as a motion for summary judgment, which is how it is titled.
Accordingly, the court will treat it as a motion for summary judgment.


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apartment and leaving it on their table. Such delivery fails to satisfy the actual notice
requirement of 9 V.S.A. § 4467. See In re Soon Kwon, 2011 VT 26, ¶ 18, 189 Vt. 598.

          Although Defendants had a valid argument that the notice of termination was not
proper, their motion for summary judgment still must be denied because they did not
raise it in a timely-filed Motion to Dismiss. Instead of challenging the notice of
termination in a Motion to Dismiss prior to filing an Answer, see Andrus v. Dunbar, 2005
VT 48, ¶ 19, 178 Vt. 554, Defendants filed an Answer and Motion for Summary
Judgment, and they voluntarily accepted service of the Rent Escrow Order. See Neverett
v. Towne, 121 Vt. 447, 457 (1960) (explaining that “the benefit of a statute may be
waived”). By accepting service of the Rent Escrow Order on July 3, 2013, Defendants
acknowledged that they were required to pay rent to the court by July 18, 2013 and they
accepted the consequences that flow from failure to make payment under a Rent Escrow
Order. The order clearly states that if Defendants failed to comply with its terms, the
court could issue a writ of possession without further hearing, as provided for in 12
V.S.A. § 4853a (h).

        On July 24, 2013, after Defendants failed to make payment under the Rent
Escrow Order, the court issued a writ of possession in favor of Plaintiff. The issuance of
this writ ended any dispute over possession of the apartment. Because Plaintiff is now in
possession of the apartment, Defendants’ summary judgment motion to obtain possession
is moot. Defendants failed to preserve their claim. “Once the landlord obtains a writ of
possession, it would be irrational to allow the tenant to regain entry to the property.”
Tucker v. Bushway, 166 Vt. 592, 592 (1996). Accordingly, Defendants’ motion for
summary judgment is denied.

                                         ORDER

       Defendants’ Motion for Summary Judgment is hereby DENIED. The court will
schedule a final hearing on Plaintiff’s claim for a monetary judgment.

       Dated at Woodstock, Vermont, this ___ day of September, 2013.



                                             Honorable Mary Miles Teachout
                                             Presiding Judge
                                             Windsor Superior Court




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