Ianelli v. Standish

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. 87-016


Victor Ianelli, Janet Ianelli,               Supreme Court
Angeline Ianelli and Salvatore
Ianelli                                      On Appeal from
                                             Rutland Superior Court
     v.

Phoebe Standish                              March Term, 1990



James L. Morse, J.

Keyser, Crowley, Banse & Facey, Rutland, for plaintiffs-appellants

Wright & Reeves, Woodstock, for defendant-appellee Phoebe Standish


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.


     Peck, J.  Plaintiffs appeal from a jury verdict awarding them no
damages in connection with their purchase of real estate and from a judgment
order awarding defendant Pheobe Standish attorneys' fees and costs.
Plaintiffs alleged that the purchase was induced by a series of
misrepresentations.  We remand for assessment of expert witness fees in
conformity with this opinion and affirm on all other grounds.
     On appeal plaintiffs claim that (1) defendant should have been
precluded from relitigating the issue of misrepresentation, which was
decided in favor of plaintiffs in a prior proceeding; (2) the award of
attorneys' fees was unauthorized and, in any event, the issue should have
been submitted to a jury; and (3) the costs awarded by the court were
excessive.
     Plaintiffs originally brought an action for fraud against defendant
Standish, from whom plaintiffs purchased a duplex, and the broker, Burton
Deitch, who negotiated the transaction.  The jury found Deitch liable to
plaintiffs in the amount of $10,000 in compensatory damages and $2,500 in
punitive damages.  However, the jury found for defendant Standish.
Subsequently, the court granted plaintiffs' motion for a new trial with
respect to Standish on the ground that its charge failed to clearly instruct
the jury that it should find her liable if it found fraud on the part of the
broker and that she retained the fruit of the fraud.
     At the new trial, plaintiffs moved for summary judgment alleging that
defendant Standish was precluded from relitigating the issue of fraud on the
part of the broker and that she did not contest that she retained the fruit
of the fraud, in this case plaintiffs' payment for the property.  Defendant
opposed the motion, arguing that a jury finding of fraud with respect to the
sale of real estate was not necessary to the award of damages in the first
trial.  She claimed that the damages could have been awarded for breach of
additional promises made by the broker to plaintiffs and that these promises
bore no relationship to the sale of the property.  Summary judgment was
denied, and the case was tried before a jury, which found for defendant.
     Defendant then moved for costs pursuant to V.R.C.P. 54 and for
attorneys' fees pursuant to a provision in the sale agreement which stated
          In the event legal action is instituted by either party
          to enforce the terms of this agreement, or arising out
          of the execution of this agreement or the sale, the
          prevailing party shall be entitled to receive from the
          other party a reasonable attorney fee to be determined
          by the court in which such action is brought.

The court awarded her $9,593.62 in costs, including deposition and expert
witness costs, and attorney fees and further ordered that if she prevailed
on appeal she should be awarded an additional sum of $1,500.  This appeal
followed.
     Plaintiffs claim that the trial court erred in allowing defendant to
relitigate issues decided against her during the first trial.  We disagree.
     Plaintiffs did not carry their burden of proving that claim preclusion
should be applied before the trial court.  See United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979).  Plaintiffs had the burden of introducing
          a sufficient record of the prior proceeding to enable
          the trial court to pinpoint the exact issues previously
          litigated.  Unless [plaintiffs] establishe[d] a suffi-
          cient record in the trial court as to the issues
          necessarily determined in the prior proceeding, [they
          are] barred from raising the issue of collateral
          estoppel on appeal.

Id.  The record discloses that the trial court declined to apply collateral
estoppel in this case because plaintiffs did not furnish it with the
instructions given to the jury in the first trial.  Without the instruc-
tions, the court was unable to determine whether a finding that fraud
induced the sale of the duplex was necessary to the jury verdict against the
broker.  "The record before the [trial] court was inadequate for it to
determine whether it should apply the doctrine of collateral estoppel; in
these circumstances we will not consider the issue on appeal."  Id.
Likewise, we shall not consider the issue here where the record before the
trial  court is inadequate. (FN1)
     Plaintiffs argue that the court erred in awarding defendant Standish
attorney fees.  They contend that she is not entitled to attorney fees and
that, in any event, the issue should have been submitted to a jury.  The
award of attorney fees by the court was not error.
     The sales contract provided that the prevailing party was entitled to a
reasonable attorney fee.  Plaintiffs claim that reasonable people could
disagree as to whether the provision applies in the present action, which
they characterize as an "independent tort action[] arising out of the
events which led up to the contract."  Moreover, they argue that the parties
did not agree that any of the provisions would survive the closing.  We
agree with the trial court that the contractual provision is unambiguous and
clearly applicable in this action -- a legal action arising out of the
execution of the agreement.
     Plaintiffs' claim that their constitutional rights were violated by the
court's failure to submit the issue to a jury is also without merit.  "It
is hornbook law that construction of contract terms is a matter of law and
not a factual determination."  Vermont National Bank v. Chittenden Trust
Co., 143 Vt. 257, 266, 465 A.2d 284, 290 (1983).  If a court rules that a
provision is ambiguous, the trier of fact, in this case the jury, must
determine the meaning intended by the parties.  Trustees of Net Realty
Holding Trust v. AVCO, 144 Vt. 243, 249, 476 A.2d 530, 533 (1984).  Here,
since the trial court ruled that the contested provision in the contract was
"clear and unambiguous," the only issue which could have been submitted to
the jury was the calculation of reasonable attorney fees.  However, the
contract provision pertaining to the award of attorney fees specifically
stated that a prevailing party was entitled to "a reasonable attorney fee to
be determined by the court in which such action is brought."  (Emphasis
added.)  Therefore, there was no question for the jury to decide, and
plaintiffs were not deprived of any constitutional right by the court's
determination of the issue.
     Plaintiffs' final argument is that the costs awarded by the trial court
were unauthorized and excessive.  The court awarded costs for depositions
and for expert witnesses.  We affirm the award of costs for depositions but
remand for calculation of expert witness costs in conformity with this
opinion.
     V.R.C.P. 54(g) provides that "[t]he taxing of costs in the taking of
depositions shall be subject to the discretion of the court."  Because
defendant prevailed against plaintiffs, the court did not abuse its
discretion in awarding defendant her actual costs incurred in taking
depositions in connection with her defense.  Proctor Trust Co. v. Upper
Valley Press, Inc., 137 Vt. 346, 352, 405 A.2d 1221, 1225 (1979).
     The court did, however, abuse its discretion in awarding defendant her
costs for expert witness fees to the extent those costs exceeded generally
allowable witness fees.  32 V.S.A. { 1551 sets out the costs allowable for
witness fees generally.  Extra compensation for expert witnesses may be
allowed only in state causes.  32 V.S.A. { 1554.  Accordingly, defendant
was limited by the provisions of 32 V.S.A. { 1551 which provide for payment
of witness fees on a per-diem and per-mile basis.  See Dulan v. Johnson, 687 P.2d 1045, 1048 (Okla. 1984)(applying a similar Oklahoma statute).

     Cause is remanded for assessment, in conformity with this opinion, of
costs allowable for expert witness fees; the judgment in all other respects
is affirmed.




                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice




FN1.      If plaintiffs subsequently gave the trial court a copy of the jury
instructions, the record does not disclose this fact.  "[W]here . . . facts
do not appear in the trial record, they will not be considered on appeal."
First Vermont Bank and Trust Co. v. Village of Poultney, 134 Vt. 28, 31, 349 A.2d 722, 725 (1975).