Coty v. Ramsey Assoc.

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-346
 
 
Victor and Mary Coty, Donald and             Supreme Court
Dorothy Nelson d/b/a Stowe Country
Shop and Anton and Pamela Flory              On Appeal from
d/b/a Die Alpen Rose Motel                   Lamoille Superior Court
 
     v.
                                             April Term, 1989
Ramsey Associates, Inc.; Normand
Ramsey and Raymond Ramsey
 
 
Linda Levitt, J., Presiding, and Shirley I. Locke and Charles A. Bailey,
  Assistant Judges
 
Harold B. Stevens, Stowe, for plaintiffs-appellants
 
Robert D. Rachlin and Anita Tuttle of Downs, Rachlin & Martin, Burlington,
  and Peter L. Murray and Thomas C. Newman of Murray, Plumb & Murray,
  Portland, Maine, for defendants-appellees Ramsey Associates, Inc., and
  Normand Ramsey
 
 
PRESENT:  Peck,(FN1) Dooley, and Morse, JJ., and Barney, C.J. (Ret.), and Dier,
 Super. J. (Ret.), Specially Assigned
 
 
     DOOLEY, J.   This is the second appeal generated in the course of
protracted litigation concerning the establishment of a deliberately
offensive pig farm in Stowe.  The relevant facts are detailed in Coty v.
Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196 (1988), in which we
affirmed the trial court's ruling that the pig farm was a nuisance and
upheld the court's award of compensatory damages.  Nevertheless, we reversed
in part because the $380,000 punitive damages award was assessed with
respect to Raymond Ramsey as well as the other defendants.  We concluded
that the evidence did not support an award of punitive damages against
Raymond Ramsey, and we remanded the case for reconsideration of those
damages based on Normand Ramsey's financial status and culpability.  Id. at
465-66, 546 A.2d  at 206.  We went on to hold, however, that the trial
court's punitive damages awards were neither manifestly nor grossly
excessive.  Id. at 467, 546 A.2d  at 206.
     After the remand, the parties resubmitted the case based solely on the
pre-existing record and a brief argument.  Plaintiff requested that the pre-
appeal punitive damages award of $380,000 be reinstated in a judgment solely
against Normand Ramsey and Ramsey Associates, Inc.  Defendants urged that no
punitive damages be awarded because defendants' activities were protected by
the First Amendment and because the punitive damages award violated the
Eighth and Fourteenth Amendments to the United States Constitution.
Defendants also urged the court to "[reappraise] the facts and circum-
stances" of the case and deny punitive damages based on that reappraisal.
In response, the trial judge filed a minority opinion reaffirming the
previous award of punitive damages, this time assessing that amount against
Normand Ramsey and Ramsey Associates, Inc.  The assistant judges disagreed,
terming the award "excessive," and ordered punitive damages in the amount of
$25,000 to each plaintiff. (FN2)  Plaintiffs appeal, and we reverse. (FN3)
     Plaintiffs maintain, inter alia, that the trial court failed to comply
with this Court's mandate on remand.  Because we agree with this contention,
we do not address their other arguments.
     The lower court was acting pursuant to our mandate and thus was limited
to following our specific directions as interpreted in light of the opinion.
See Halpern v. Kantor, 139 Vt. 365, 367, 428 A.2d 1132, 1134 (1981).  This
rule must be viewed in the context of the doctrine of law of the case as
applied to decisions of this Court:
	"It is a rule of general application that a decision in
	a case . . . of last resort is the law of that case on
	the points presented throughout all the subsequent pro-
	ceedings therein, and no question then necessarily in-
	volved and decided will be reconsidered by the Court in
	the same case on a state of facts not different in legal
	effect."  . . . [T]he result [of reversing former de-
	cisions in the same case] would be mischievous because
	if all such questions are to be regarded as still open
	for discussion and revision in the same cause, there
	would be no end to the litigation until the ability of
	the parties or the ingenuity of their counsel were
	exhausted.
 
Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 415-16, 177 A. 631,
653 (1934) (quoting Barclay v. Wetmore & Morse Granite Co., 94 Vt. 227, 230,
110 A. 1, 2 (1920)).  In Belock v. State Mutual Fire Ins. Co., 108 Vt. 252,
255, 185 A. 100, 101-02 (1936), the Court applied the principle to the
refusal of the trial court to set aside a verdict as against the weight of
the evidence, holding that the original decision could not be reexamined
after a remand "unless the evidence at retrial was materially different."
Thus, the "law of the case" policy is also applicable to fact questions
where there has been no new evidence.  See 18 C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure { 4478 at 799-800 (1981) (questions
of fact "absent significant new evidence" are particularly unsuited for
reconsideration following a remand).
     It was clear from the evidence presented at the original trial that

The remand was made necessary solely because of the removal of Raymond
Ramsey as a punitive damages defendant.  Once he was removed as a limiting
factor, any adjustment in the assessment -- which was to have been made with
respect to the facts as found by the trial court -- would necessarily have
been an increase.
     The downward adjustment in the punitive damages was made because the
majority of the court found the prior amount to be "excessive," and because
the compensatory damages award satisfied the demands of plaintiffs as shown
by the evidence. The remaining punitive damages they awarded were to compen-
sate the plaintiffs for "aggravation."  It is clear from these reasons that
the court accepted defendant's invitation to reexamine the prior punitive
damages award as if it never occurred.  In doing so, the court directly
contradicted our decision that the earlier award was not excessive and
changed the theory of punitive damages to one of compensation.  Absent new
evidence, the court's action was exactly the type of relitigation of a
previously-concluded issue that the Perkins Court cautioned against.  Our
mandate cannot be read to allow such a reconsideration of the punitive
damages award against Ramsey Associates, Inc. and Normand Ramsey.
     Because plaintiffs do not seek an increase in the amount of punitive
damages originally assessed, we will enter judgment here.  Plaintiffs seek
interest on the punitive damages award from the date of the original judg-
ment.  Although prejudgment interest is generally unavailable on punitive
damages awards, see Turcotte v. Estate of LaRose, No. 87-507, slip op. at 5
(Vt. Dec. 1, 1989), we agree that the amount of the punitive damages were
established in the original judgment, and interest should accrue from that
date.
     The superior court's judgment is reversed and its order dated June 2,
1988, is vacated.  Punitive damages are assessed against defendants Normand
Ramsey and Ramsey Associates, Inc., in the following amounts, plus interest
from August 15, 1985, the date of the original judgment:  Plaintiffs Victor
and Mary Coty are awarded $80,000; plaintiff Nelson is awarded $150,000;
and plaintiffs Anton and Pamela Flory are awarded $150,000.  These awards
are made in addition to those already affirmed.
 
                                        FOR THE COURT:
 
 
 
                                        Associate Justice

FOOTNOTES: 

FN1.     Justice Peck sat for oral argument but did not participate in the
decision.

FN2.     Because of a turnover in the assistant judge positions, these
assistant judges were not those who had sat on the case at trial.  They made
their ruling after "reviewing the Supreme Court decision and Judge Linda
Levitt's opinion at some length."

FN3.     Defendants also cross-appealed arguing that the punitive damages
award violated the First Amendment because their pig farm was created as a
form of protest, the Eighth Amendment because it was an excessive fine, and
the Fourteenth Amendment because there are no standards upon which the award
is based.  The first argument was never raised at trial or in this Court on
appeal, probably because the defendants were insisting throughout the trial
and appeal that they were running a legitimate and appropriate farm in order
to make a profit.  They could have pleaded and pursued the protest theory as
an alternative defense but failed to do so.  See V.R.C.P. 8(e)(2) (defenses
may be pled alternatively).  We think they are now foreclosed from raising
the protest theory for the first time at the post-remand hearing.

     The second theory was considered and rejected in our first opinion.
Coty v. Ramsey Associates, Inc., 149 Vt. at 468, 546 A.2d  at 207.  The third
theory is briefed in passing relying only on an excerpt from a concurring
opinion in Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 87 (1988)
(O'Connor, J., concurring).  We find this briefing to be wholly inadequate.
We believe this theory was waived by the failure to raise it at the first
trial and, in any event, is not supportable given the circumstances of this
case.

FN4.     In the course of assessing punitive damages, the financial status
of the least wealthy defendant must be taken into account.  Woodhouse v.
Woodhouse, 99 Vt. 91, 155, 130 A. 758, 788 (1925).