Rock of Ages Corp. v. Bernier, No. 68-2-14 Wncv (Teachout, J., April 22, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 68-2-14 Wncv


ROCK OF AGES CORPORATION and
NORTH EAST MATERIALS GROUP, LLC
    Plaintiffs

           v.

LORI BERNIER AND MARC BERNIER
     Defendants


                                                   DECISION
                                  Defendants’ Motion for Summary Judgment, and
                                           Defendants’ Motion to Strike

       Oral argument was heard on the above motions on February 17, 2015. Plaintiffs were
represented by Attorney Alan P. Biederman. Defendants were represented by Attorney Daniel P.
Richardson.

         Defendants Lori and Marc Bernier own residential property in Barre Town. A provision
in their deed prohibits them from deeming Plaintiff Rock of Ages’ industrial and quarrying
pursuits “a hindrance or nuisance to their possession and enjoyment” of their land. In the
complaint, Rock of Ages1 claimed that the Berniers are in violation of this deed restriction by
complaining about noise, dust, and truck traffic to “various authorities,” including the Town of
Barre, the State of Vermont, and bodies conducting permit proceedings related to Rock of Ages’
operations. Based on the alleged violations, Rock of Ages filed suit seeking a declaration of the
parties’ respective rights and obligations under the deed provision. It also sought compensatory
damages for the violations alleged, and injunctive relief to prevent further such violations.

        The Berniers responded with a counterclaim also seeking declaratory relief on the scope
and validity of the deed provision. In addition they claim that the complaint is an improper
attempt by Rock of Ages to chill their rights to free speech and public participation, and that as
such it is both an abuse of process and a violation of 12 V.S.A. § 1041, Vermont’s anti-SLAPP
(Strategic Lawsuit Against Public Participation) statute. They also claim slander of title. They
seek declaratory and injunctive relief, compensatory and special damages, and attorney fees.

       The Berniers filed a Motion for Summary Judgment on the meaning of the deed provision
and a Motion to Strike the complaint as a SLAPP suit. By the time of the oral argument on these

1
  Plaintiff North East Materials Group is Rock of Ages’ lessee. It conducts or anticipates conducting certain
quarrying and industrial activities, operates an asphalt plant, and crushes waste rock. For purposes of this decision,
there is no need to distinguish between Plaintiffs. For ease of reference, the court will refer to Rock of Ages alone.
motions, the case had evolved. At the hearing, Rock of Ages limited its claim to one seeking
declaratory relief on the scope of the deed provision and clarified that it is no longer seeking
compensatory damages. The Berniers accepted that the complaint—so limited—is not a SLAPP
suit within the contemplation of 12 V.S.A. § 1041. They argued, however, that up until the
hearing, the complaint was not so limited.

       Subsequent to the oral argument, Plaintiff has filed a Motion to Amend Complaint,
seeking to formally amend the complaint to one for declaratory and injunctive relief only. The
time for response has not yet ended. The filing of the Motion to Amend does not change the
need for legal ruling on the pending motions.

The deed provision

        In this suit, both parties seek a declaration of the meaning of the deed language at the
heart of this case. The Berniers argue that the provision embeds into the chain of title a binding
version of the “coming-to-the-nuisance” doctrine: that someone who purchases real estate
knowing that it may be affected by activities of a neighboring owner that could be the basis of a
nuisance claim cannot thereafter assert a valid nuisance claim. See Restatement (Second) of
Torts § 840D (“The fact that the plaintiff has acquired or improved his land after a nuisance
interfering with it has come into existence is not in itself sufficient to bar his action, but it is a
factor to be considered in determining whether the nuisance is actionable.”). The Berniers
claim that the provision means only that they are barred from private claims against Rock of
Ages sounding in nuisance. Rock of Ages contends that the provision prohibits the Berniers
from engaging in a range of activities broader than simply asserting a private cause of action for
nuisance, although Rock of Ages no longer contends that it prevents them from participating in
public permitting proceedings.

       The provision itself reads as follows:

       By acceptance of this deed, [1] the Grantees acknowledge that they are familiar
       with the quarrying and industrial operations of the Grantor and [2] take title to this
       property with reservation on the part of the Grantor and its successors and assigns
       that it will continue and may enlarge its quarrying and industrial activities on its
       remaining lands in the vicinity of the land and premises described above, and [3]
       that such activities shall not be deemed by the Grantees or their successors and
       assigns, a hindrance or nuisance to their possession and enjoyment of the land and
       premises as described above.

        Construction of the paragraph shows three operative statements:
                (1) Grantees acknowledge that they know about Rock of Ages’ quarrying and
industrial operations;
                (2) Grantees take title subject to an interest reserved by Rock of Ages for itself
and its successors and assigns as owners of nearby property; and
                (3) Grantees agree for themselves and their successors and assigns not to “deem”
existing or enlarged quarrying and industrial activities a hindrance or nuisance with respect to the
purchased property.

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         The first clause appears to be a predicate for application of the “coming to the nuisance
doctrine”: it sets the stage for Rock of Ages to show that no grantee would have a basis for
asserting a nuisance claim for the identified activities because of their knowledge in “coming to”
any nuisance resulting from quarrying and industrial operations. This statement does not by
itself create any particular rights or obligations on the part of any party, but is merely a
statement.

        The second clause utilizes the language of property conveyancing: it reserves from the
conveyance a property interest in the parcel conveyed, and identifies the property that carries the
benefit of the reserved right as well as the fact that the reserved right runs with the land to benefit
Rock of Ages’ successors and assigns. The interest reserved is not an ownership interest, but an
easement: the right to affect Grantees’ property by imposing on it effects from quarrying and
industrial operations, which might include such effects as noise, dust, traffic, and the like.

        The third clause utilizes the language of contract: the Grantees agree to give up a right
that they would otherwise have. It is a right related to their use and enjoyment of the purchased
property, and they agree to give it up for themselves and their successors and assigns. This is the
language of contract, but because the right is given up not only for the Grantees personally but
also on behalf of their successors and assigns, it is a covenant obligation that runs with the land.

       The issue in the case is, what is the right that is given up in the covenant? The right is
defined as “deeming” quarrying and industrial activities (then existing and to be expanded) “a
hindrance or nuisance to their possession and enjoyment of the land.”

         Rock of Ages argues that this language restricts Defendants more broadly than preventing
private nuisance suits, and that this makes sense because Rock of Ages was seeking to protect
itself from having any trouble of any kind from the Berniers as neighboring property owners,
such as complaints to the police or phone calls to regulatory agencies to alert them about possible
violations of land use or other regulations.

        A covenant is a contract, so the question becomes, would such an interpretation meet the
standards necessary to make a contract enforceable? See Evans v. Forte, 135 Vt. 306, 310
(1977) (“Vagueness, indefiniteness and uncertainty of expression as to any of the essential terms
of an agreement have been held to preclude the creation of an enforceable contract. 1 Corbin on
Contracts § 95 (1963))”. As this lawsuit illustrates, interpreting the provision in this manner
carries the inherent problem that it is virtually impossible for the parties to have a clear definition
of what is or is not prohibited sufficient to support enforcement. Rock of Ages asks the court to
create such a definition, but to do so, the court would be creating contract terms not agreed to by
the parties themselves. If the parties to the original conveyance intended the covenant to
encompass a broad range of activities, the terms of the covenant could have been so defined, and
should have been so defined in order to create an enforceable covenant.

        The provision as a whole is closely tied to the long-recognized legal doctrine of nuisance,
and more specifically to the “coming to the nuisance” doctrine. The third clause, the covenant
clause, is grounded in the language of nuisance law: the “deeming” that is prohibited is tied

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directly to a “hindrance or nuisance to their possession and enjoyment of the land.” See, e.g.,
John Larkin, Inc. v. Marceau, 2008 VT 61, ¶ 8, 184 Vt. 207 (“[T]respass is an invasion of the
plaintiff’s interest in the exclusive possession of his land, while nuisance is an interference with
his use and enjoyment of it.” (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts
§ 87, at 622 (5th ed. 1984)) (emphasis added); State v. Morse, 84 Vt. 387, 393 (1911) (“It is a
part of the great social compact to which every person is a party—a fundamental and essential
principle in every civilized community—that every person yields a portion of his right of
absolute dominion and use of his own property in recognition of an obedience to the rights of
others, so that others may also enjoy their property without unreasonable hurt or hinderance.”
(quoting Wood, Nuisances 3d, § 1) (emphasis added)); State v. Smith, 54 Vt. 403, 412 (1882) (“It
is difficult, and perhaps impossible, to establish any general rule upon the subject; but it must be
shown, to constitute an act like the one complained of—a public nuisance, that the travelling
public were, to some extent, impeded, hindered, or obstructed, in the use of the highway for the
purpose of travelling over it.” (emphasis added)).

        The introductory clause establishes the knowledge of nuisance-like activities, the
predicate for application of the coming-to-the-nuisance doctrine. The context is that all terms are
included in a single paragraph—even a single sentence—that defines rights and obligations
related to nuisance law. In this tight context, the right that is given up in the covenant in the third
clause is the right to assert a claim sounding in nuisance against Rock of Ages based on the
defined activities, which otherwise could provide a basis for such a claim.

         The provision as a whole describes initially that its subject matter, and hence its scope, is
the coming-to-the-nuisance doctrine. It then addresses this in two ways that complement each
other: Rock of Ages reserves an easement so that it can continue to affect the conveyed parcel by
carrying on its defined activities, and then the Grantees agree to waive any right they would
otherwise hold to assert a nuisance claim against Rock of Ages for the defined activities. Any
effort to interpret the third clause as giving Rock of Ages a right to prevent a broader range of
activities has two problems: such an interpretation is highly strained when the structure and
language of the deed provision is analyzed and read as a coherent whole, and such an
interpretation purports to create a contract right that does not meet the standards required for an
enforceable contract.

       For the foregoing reasons, the Court declares that the deed provision:
       (1) establishes that Rock of Ages holds an easement on the Berniers’ property to affect it
by carrying on quarrying and industrial operations on its retained land, and
       (2) precludes the Berniers and their successors from pursuing a legal cause of action
sounding in nuisance against Rock of Ages and its successors based on quarrying and industrial
operations on its retained land.
       The covenant does not prevent the Berniers from engaging in any other particular forms
of conduct or speech.

       Based on the foregoing, the Berniers’ Motion for Summary Judgment is granted.




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The SLAPP Motion to Strike

         Vermont’s anti-SLAPP statute is intended to provide protection against “lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom
to petition government for the redress of grievances.” 2005, No. 134 (Adj. Sess.), § 1(1). The
statute authorizes a defendant who was sued due to or in anticipation of the exercise of those
rights to file a special motion to strike the lawsuit at the outset of the case. 12 V.S.A. § 1041(a).
If such a motion is filed, the court must grant it unless the plaintiff proves that:

       (A) the defendant’s exercise of his or her right to freedom of speech and to
       petition was devoid of any reasonable factual support and any arguable basis in
       law; and

       (B) the defendant’s acts caused actual injury to the plaintiff.

Id. § 1041(e)(1). If the plaintiff cannot make such a showing, the court grants the motion and the
defendant is entitled to attorney fees and costs. Id. § 1041(f)(1). If the motion was frivolous, the
plaintiff is entitled to fees and costs. Id.

       The statute broadly protects:

       (1) any written or oral statement made before a legislative, executive, or judicial
       proceeding, or any other official proceeding authorized by law;

       (2) any written or oral statement made in connection with an issue under
       consideration or review by a legislative, executive, or judicial body, or any other
       official proceeding authorized by law;

       (3) any written or oral statement concerning an issue of public interest made in a
       public forum or a place open to the public; or

       (4) any other statement or conduct concerning a public issue or an issue of public
       interest which furthers the exercise of the constitutional right of freedom of
       speech or the constitutional right to petition the government for redress of
       grievances.

12 V.S.A. § 1041(i).

         In this case, both parties sought a declaration of the scope of the deed provision at issue.
It is not clear how the statute should apply in a case in which the plaintiff has a legitimate legal
claim that is mixed with a possible impermissible claim under the statute. Because Rock of Ages
has now restricted its complaint to its declaratory relief claim and the Berniers concede that the
declaratory claim is outside the scope of § 1041, the court does not need to address the issue.
However, permitting a plaintiff who initiates a lawsuit in violation of § 1041 to fully avoid the
consequences of a motion to strike by withdrawing such claims when provoked by the motion

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would undermine the statute’s remedial purpose. See Raynes v. Rogers, 2008 VT 52, ¶ 15, 183
Vt. 513 (“As we have stressed in the past, remedial statutes . . . must be liberally construed to
‘suppress the evil and advance the remedy intended by the Legislature.’” (citation omitted)).

        In this case, Rock of Ages initially sought damages and injunctive relief based on
conduct by the Berniers that is within the protected scope of § 1041 and, by Rock of Ages’ own
admission, not within the scope of the covenant—their participation in permit proceedings such
as Act 250. Withdrawing all such claims renders the Berniers’ Motion to Strike moot for
purposes of dismissing the complaint or a portion of its claims. It does not alter their entitlement
to attorney fees and costs pursuant to 12 V.S.A. § 1041(f)(1).

        The Motion to Strike thus is granted to that extent. The Berniers are entitled to fees and
costs in an amount reasonably allocable to the withdrawn claims that violated § 1041.


Other claims

         There were indications at the hearing on the motions that the Berniers intended to
withdraw, or at least would be inclined to withdraw, their claims of abuse of process and slander
of title now that Rock of Ages’ claim is limited to seeking declaratory relief. The abuse of
process claim is the common law analog to the now-resolved anti-SLAPP claim. The slander of
title claim requires proof of special damages that so far have not been clearly alleged. The court
understands that the Berniers intended to withdraw these claims and will consider them
dismissed unless notified otherwise within fifteen days.


                                             ORDER

       For the foregoing reasons,

       1. The Berniers’ Motion for Summary Judgment is granted;
       2. The Motion to Strike is granted;
       3. The Berniers’ abuse of process and slander of title claims will be dismissed unless the
          Berniers notify the court within 15 days that they are not withdrawn; and
       4. A hearing will be scheduled on attorneys’ fees and costs. It will be scheduled for one
          hour unless the attorneys notify the clerk that a different amount of time is needed.

       Dated at Montpelier, Vermont this ____ day of April 2015.


                                                      _____________________________
                                                      Mary Miles Teachout
                                                      Superior Judge




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