Pion v. Bean
Annotate this Case
Pion v. Bean (2002-179); 176 Vt. 1; 833 A.2d 1248
2003 VT 79
[Filed 29-Aug-2003]
[Motion for Reargument Denied 1-Oct-2003]
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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
2003 VT 79
No. 2002-179
Leita and Roland Pion Supreme Court
On Appeal from
v. Franklin Superior Court
Kevin Bean and Tina Clapper January Term, 2003
Ben W. Joseph, J.
Peter F. Langrock and Susan M. Murray of Langrock Sperry & Wool,
Middlebury, for Plaintiffs-Appellants.
Michael Rose, St. Albans, for Defendants-Appellees.
PRESENT: Amestoy, C.J., Dooley (FN1), Johnson and Skoglund, JJ., and
Gibson, J. (Ret.), Specially Assigned
¶ 1. SKOGLUND, J. Plaintiffs Leita and Roland Pion appeal from the
trial court's order in this boundary dispute and tort action. Plaintiffs
contend that the trial court erred in: (1) establishing the northern
boundary of defendants' lot; (2) finding for defendants on their claims of
invasion of privacy, infringement of riparian rights, and conversion; and
(3) awarding compensatory and punitive damages to defendants. We affirm.
¶ 2. Plaintiffs and defendants own adjoining residential lots in St.
Albans, Vermont. Plaintiffs' lot, less than one acre in size, resembles an
upside-down "u." It surrounds defendants' one-quarter-acre lot (B/C lot).
Both parcels front Vermont Route 36 on the south; the parties dispute the
northern, western, and eastern borders of the B/C lot.
¶ 3. In August 2000, plaintiffs filed a complaint to quiet title.
They asked the court to establish the boundaries of the B/C lot consistent
with a survey they had prepared. They also sued defendants for trespass
and unlawful discharge of sewage. Defendants filed counterclaims against
plaintiffs, raising allegations of trespass, infringement of riparian
rights, intentional infliction of emotional distress, invasion of privacy,
and nuisance. Defendants requested injunctive relief, compensatory
damages, punitive damages, and attorneys' fees. Defendants later amended
their counterclaim to add a claim for removal of trees from their property.
¶ 4. Following a trial by court, in a March 2002 order, the court
established the boundaries of the B/C lot consistent with a survey
provided by defendants, rejecting the survey submitted by plaintiffs. The
court also awarded defendants compensatory and punitive damages on their
conversion and invasion of privacy claims, and granted injunctive relief
and compensatory damages on their infringement of riparian rights claim.
This appeal followed.
¶ 5. Plaintiffs argue on appeal that the trial court erred in: (1)
establishing the northern boundary of the B/C lot; (2) granting injunctive
relief, and awarding damages for infringement of riparian rights based on
a finding that plaintiffs were responsible for groundwater appearing in
defendants' basement; (3) awarding treble damages for conversion of two
trees from defendants' property; (4) holding them liable for invasion of
privacy; and (5) awarding punitive damages. Given the multiple claims of
error raised, we address each issue and its underlying facts in turn.
¶ 6. We first address the parties' boundary dispute. The facts
supporting this claim are as follows. The B/C lot was created in 1949 when
Mrs. Pion's grandfather subdivided his property. The deed describes a lot
bounded by four iron posts, with the following dimensions: eighty-nine
feet between the southwest and northwest corner pins, sixty-nine and
one-half feet between the northwest and northeast corner pins, sixty feet
between the northeast and southeast corner pins, and fifty-nine and
one-half feet between the southeast and southwest corner pins. According
to the deed, the northwest and northeast corners of the B/C lot are
located at ninety-degree angles formed by the intersection of the northern
boundary with the western and eastern boundaries.
¶ 7. The original posts marking the northeast and northwest corners
of the lot no longer exist, and the parties presented conflicting evidence
about the posts' location. Plaintiffs argued that their survey, prepared
by Steven Brooks in April 2000, accurately depicted the lot's northeast
and northwest corners. At trial, Brooks described the method he used to
ascertain the property's northern boundary. He testified that he began
his survey at a buried iron marker in the southwest corner of the lot that
had been pointed out by Mr. Pion. Following the distance specified in the
deed, Brooks then installed a new iron marker eighty-nine feet north of the
first marker. At that point, Brooks discovered that he could not "close"
the survey using the distances, courses, and specific angles found in the
deed. Brooks testified that, if the northern boundary of the property
were to meet the western and eastern boundaries at right angles, the
distances would be incorrect; if he followed the distances in the deed,
the angles would be incorrect. Consequently, following surveying
conventions, Brooks let the distances called for in the deed control over
the angles, and prepared his survey accordingly.
¶ 8. In support of their claimed northern boundary, defendants
submitted a 1995 survey map that had been prepared for the installation of
a new septic system (Benchmark survey). The survey map, drawn to scale,
depicts two iron pins in the northwest and northeast corners of the B/C
lot. The pins identified on the Benchmark survey are farther north than
those depicted in the Brooks survey. Defendants maintained that the pins
identified in the Benchmark survey accurately represented the missing
northwest and northeast corner pins.
¶ 9. Defendant Bean, and four prior residents of the B/C lot,
testified that they had observed the pins in locations consistent with the
Benchmark survey map. Bean stated that, when he purchased the B/C lot in
1998, the pins were in the same location as depicted in the Benchmark
survey. Bean stated that the northeast corner pin had been located eight
feet north and two to three feet east of the northeast corner of his
garage.
¶ 10. Previous residents of the B/C property testified similarly.
Richard Buro, who lived in the B/C house between 1965 and 1986, testified
that the northeast corner pin used to be located six feet north and two
feet east of the B/C garage. Douglas Larson, who lived in the B/C house
between 1990 and 1994, testified that the northeast corner of the lot had
been marked by an iron pin about nine feet north and three feet east of
the back of the B/C garage. Deborah Larson testified that the northeast
corner pin had been located about three feet east and nine feet north of
the B/C garage, and the northwest corner pin had been in a brook behind
the B/C house. Ann Putnam, who owned the B/C lot between 1994 and 1997,
testified that the northeast corner pin had been located about nine feet
north and three feet east of the northeast corner of the B/C garage. She
stated that the northwest corner pin had been located in the stream bed,
two to three feet west of the north-south property line that had been
defined by a stone wall. Mrs. Putnam testified that the Benchmark survey
accurately depicted where she perceived the B/C lot boundaries to be.
¶ 11. In 1999, plaintiffs filled in the streambed behind the B/C
house, and installed a culvert. Bean, Mrs. Putnam, and other prior
residents of the B/C lot, testified that the pins they had previously
observed were missing when they visited the B/C lot in May 2000.
¶ 12. Based on this and other evidence presented at trial, the court
established the B/C lot's boundaries. The court concluded that the iron
pins shown in the Benchmark survey were the original artificial monuments
installed at the creation of the B/C lot, and that plaintiffs had removed
these markers when they filled in the streambed. The court found the
Benchmark survey's depiction of the pins' location consistent with
testimony from defendants and prior owners of the B/C lot. The court
therefore established the northern boundary of the B/C property as a
straight line running between the two pins identified in the Benchmark
survey.
¶ 13. The court rejected Brooks' opinion regarding the northern
boundary because it conflicted with credible circumstantial evidence
establishing the original monuments as shown on the Benchmark survey. The
court found that Brooks had ignored the monuments, and instead started his
survey at a pin pointed out by Mr. Pion. The court also found Brooks
unreliable because he changed his testimony mid-trial, and his trial
testimony conflicted with his own survey map.
¶ 14. Plaintiffs argue that the trial court erred in relying on
defendants' "septic sketch," rather than the Brooks' survey, in
establishing the B/C lot's northern boundary. They maintain that the
Benchmark survey, and the testimony of Bean and prior B/C owners, was too
imprecise to support the court's finding. Plaintiffs also argue that the
evidence does not support the court's finding that the pins shown on the
Benchmark survey are the original northwest and northeast markers.
Plaintiffs make brief reference to the court's determination of the B/C
lot's western boundary, but they do not specifically challenge any of the
findings underlying the court's conclusion. We therefore decline to
address this argument. See Johnson v. Johnson, 158 Vt. 160, 164, n.*, 605 A.2d 857, 859 n.* (1992) (this Court will not consider arguments not
adequately briefed).
¶ 15. The court's determination of a boundary line is a question of
fact to be determined on the evidence. Monet v. Merritt, 136 Vt. 261,
265, 388 A.2d 366, 368 (1978). We will not disturb the trial court's
findings of fact unless they are clearly erroneous, despite
inconsistencies or substantial evidence to the contrary. Id. When a deed
is ambiguous, the court applies well-established rules of construction to
establish the intent of the parties to the deed. Id. at 264, 388 A.2d at
368. An inconsistent metes and bounds description yields to a description
by monument. Id.; Marshall v. Bruce, 149 Vt. 351, 352, 543 A.2d 263, 264
(1988). Accordingly, distances must be lengthened or shortened and
courses varied so as to conform to the monument description. Monet, 136
Vt. at 265, 388 A.2d at 368.
¶ 16. In this case, the trial court made extensive findings to
support its establishment of the northern property line. The court found
that the iron posts referenced in the deed, as monuments, trumped
competing interpretations of the deed. Because the original posts were
missing, the court relied on the Benchmark survey for the location of the
posts, finding it consistent with witness testimony at trial. The court
rejected the Brooks survey, after concluding that it conflicted with the
Benchmark survey and Brooks' trial testimony. These findings are not
clearly erroneous.
¶ 17. The court acted within its wide discretion in rejecting
plaintiffs' survey, and instead relying on evidence presented by
defendants in establishing the northern boundary line. "As the trier of
fact, it [is] the province of the trial court to determine the credibility
of the witnesses and weigh the persuasiveness of the evidence." Cabot v.
Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997); see also Kanaan v.
Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (trial court's findings
accorded wide deference on review because court is in unique position to
assess credibility of witnesses and weight of evidence). The trial court
rejected Brooks's survey after concluding that he had ignored the
monuments described in the B/C deed, changed his testimony mid-trial, and
offered trial testimony that conflicted with his own survey map. We will
not disturb this assessment on appeal. See Cabot, 166 Vt. at 497, 697 A.2d at 652.
¶ 18. In a similar vein, the court acted within its discretion in
relying on the Benchmark survey and the testimony presented by defendants.
See id. The question of whether a map is sufficiently accurate to be
helpful to the fact-finder, and therefore admissible, is reserved for the
trial court. Hassam v. Safford Lumber Co., 82 Vt. 444, 449, 74 A. 197,
198-99 (1909). Contrary to plaintiffs' assertion, the Benchmark survey
map is not a "septic sketch." It is a professional survey, drawn to
scale, showing magnetic north, elevations, boundary lines, and the location
of two iron pins in the northwest and northeast corners of the B/C lot.
It provides a scale of distances, which, when applied, depicts a lot that
is approximately eighty-nine feet by sixty-nine feet by sixty feet by
fifty-nine feet. The map provides a sufficient basis for establishing the
location of the missing northwest and northeast corner pins.
Additionally, as the trial court found, and the record reflects, Bean's
testimony, and the testimony of four previous B/C lot owners, was
consistent with the Benchmark survey's depiction of the iron pins. The
court's establishment of the northern property line is therefore supported
by the evidence.
¶ 19. Plaintiffs maintain that there is no evidence that the pins
identified in the Benchmark survey are the original pins described in the
B/C deed. They point to a statement from a previous B/C lot owner that
the pins in the streambed might have been installed by a surveyor in the
1960s. This ambiguous statement, standing alone, is insufficient to
undermine the court's finding regarding the northern property line. See
Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 454, 752 A.2d 26, 30
(2000) (party alleging error must show that there is no credible evidence
to support court's findings); Bevins v. King, 147 Vt. 203, 206, 514 A.2d 1044, 1046 (1986) ("On review, we will make all reasonable inferences in
support of the court's judgment."). As discussed above, the B/C deed
references four iron posts that mark the corners of the lot. Mrs. Pion
testified at trial that the pins were in place when the property was
initially conveyed. Bean, and four prior B/C lot owners, testified to the
pins' locations prior to their removal by plaintiffs. Other than the
single sentence cited above, plaintiffs point to no evidence to support
their assertion that the pins depicted on the Benchmark survey were not
the original pins referenced in the deed. We therefore conclude that the
trial court did not err in finding that these pins were the original pins
described in the B/C deed.
¶ 20. Plaintiffs next argue that the trial court erred in holding
them responsible for flooding defendants' basement. Plaintiffs assert
that the trial court erroneously allowed Bean to testify that plaintiffs'
destruction of a streambed behind the B/C home caused the flooding. They
maintain that causation should have been established through expert
testimony. Plaintiffs also argue that the court's findings, and its
conclusion, are not supported by the evidence.
¶ 21. At trial, defendants presented the following evidence to
support their claim that plaintiffs had infringed on their riparian
rights, and caused their basement to flood. Bean testified that the
southeast side of his property was higher than the northwest side, and
excess groundwater used to flow down and into the brook where it was
carried away. In 1999, plaintiffs filled in the streambed that ran behind
the B/C home, and constructed a culvert. Bean stated that, after
plaintiffs did this, a substantial amount of water began seeping into the
southwest and northeast corners of his basement, damaging property stored
there.
¶ 22. Bean also testified that he used a sump pump in his basement
to remove excess groundwater from his property. The pump, which was
installed in 1973, discharged water through a drainage pipe that emptied
into the south side of the streambed, inside the northern boundary of the
B/C lot. Prior to plaintiffs' installation of the culvert, the sump pump
did not need to run very often; after the culvert was installed, it ran
daily. Bean testified, over plaintiffs' objection, that after the
installation of the "solid piece of culvert," there was "no place for that
water to go" except into his basement. The court rejected plaintiffs'
assertion that, as a layperson, Bean was not qualified to make such a
statement.
¶ 23. Based on this testimony, the trial court found that, as a
result of plaintiffs filling in the streambed and installing a culvert,
water that had drained from the B/C property since 1973 no longer had a
stream to flow into and be carried away. Consequently, the drainage water
backed up into the basement of the B/C house causing property damage. To
prevent future flooding, the court ordered plaintiffs to pay to have the
streambed restored to its original condition. The court also awarded
defendants compensatory damages for the destruction of their personal
property caused by the flooding.
¶ 24. The court's findings, and its conclusion, are supported by the
record. As described above, Bean testified that water could no longer
drain from his property because plaintiffs had filled in the streambed
behind his home. The court did not abuse its discretion in allowing this
testimony. See V.R.E. 701 (lay witness may testify to inferences that are
rationally based on his perception and helpful to a determination of a
fact in issue); Sweet v. Roy, 173 Vt. 418, 434, 801 A.2d 694, 706 (2002)
(we will not reverse the trial court's discretionary rulings absent an
abuse of that discretion). The evidence shows that plaintiffs'
elimination of the stream increased the water flow onto defendants'
property, causing an increase of water flowing into the basement. This
caused damage to defendants' personal property. We therefore conclude
that the court properly awarded defendants compensatory damages.
¶ 25. The evidence also supports the court's conclusion that
injunctive relief was appropriate. Under Vermont law, "[u]pper and lower
property owners have reciprocal rights and duties as to surface water
drainage." Swanson v. Bishop Farm, Inc., 140 Vt. 606, 610, 443 A.2d 464,
465 (1982), overruled on other grounds by Soucy v. Soucy Motors, Inc., 143
Vt. 615, 619, 471 A.2d 224, 226 (1983). The upper owner has the right to
have the surface water pass to lower lands in its natural condition, and
the lower owner must accept the natural flow of such waters upon his land.
Id., 443 A.2d at 465-66. Each riparian proprietor has a right to use the
water of a stream for his needs in a way that does not deprive others of
an equal enjoyment of their same rights. Lawrie v. Silsby, 76 Vt. 240,
252, 56 A. 1106, 1108 (1904). The question of what is a reasonable and
proper use of the waters of a stream is usually a question of fact for the
trier. Id. While the record is unclear as to what rights, if any,
defendants had to the actual stream at issue, the evidence supports a
finding that the stream ran along the northern edge of defendants' land
until such time as plaintiffs eliminated the stream by installing a
culvert. Prior to its removal, the stream, which was lower than the
majority of defendants' ground level, provided a means to drain
defendants' property. This evidence provides sufficient support for the
court's finding that plaintiffs infringed on defendants' riparian rights.
We therefore affirm the court's grant of injunctive relief.
¶ 26. Plaintiffs next argue that the court erred in assessing treble
damages for conversion under 13 V.S.A. § 3606 based on their removal of two
trees from defendants' property. Plaintiffs argue that it was reasonable
for them to believe that the trees they cut down were on their property.
They also assert that the court erred in calculating damages.
¶ 27. At trial, Bean testified that plaintiffs had removed two shade
trees from his property without his permission. Plaintiffs initially
maintained that the trees were eighty to ninety percent on their property.
They later argued that the trees were completely on their property.
Plaintiffs' survey showed the trees straddling the parties' property line.
¶ 28. The trial court determined that, based on the northern
property line it established, the two trees were on defendants' property.
The court rejected plaintiffs' claim of ownership, finding Brooks's
testimony to that effect contradictory and not credible. Even under
plaintiffs' own survey, the court pointed out, the trees were straddling
the northern property line. The court therefore concluded that plaintiffs
had no reason to believe that the trees belonged to them, but instead had
removed the trees "solely out of malice." For this reason, it awarded
treble damages to defendants.
¶ 29. The court's conclusion is supported by the evidence. Under 13
V.S.A. § 3606, someone who cuts down trees belonging to another must pay
treble damages to the rightful owner unless the cutter has "good reason"
to believe that the trees belonged to him. See Amey v. Hall, 123 Vt. 62,
69, 181 A.2d 69, 74 (1962) (defendant may escape multiple damages if he
satisfies court that he had adequate reason to understand that he had
title to area where cutting was done); Ripchick v. Pearsons, 118 Vt. 311,
318, 109 A.2d 347, 352 (1954) (to escape treble damages, defendant must
show that he had good reason to believe timber was on his land, such
reason as would lead a man while in the exercise of ordinary care and
prudence to so believe). Plaintiffs did not have a good reason to believe
that the trees were on their property because, even under their own
survey, which was suspect, the trees were straddling the parties' property
line. Moreover, because we previously determined that the court properly
established the B/C lot's northern boundary, the court's finding that the
trees were on defendants' property is sound. See Town of Wolcott v.
Behrend, 147 Vt. 453, 459, 519 A.2d 1156, 1160 (1986) (location of
boundary line between properties, when disputed in an action under 13
V.S.A. § 3606, is question of fact; trial court's finding on this point
must stand if supported by any substantial evidence, although there may be
inconsistencies, or even substantial evidence to the contrary). We
therefore conclude that the trial court properly awarded treble damages
under 13 V.S.A. § 3606.
¶ 30. We reject plaintiffs' assertion that the trial court erred by
calculating damages based on the replacement value of the removed trees.
Plaintiffs argue that there are only two methods of ascertaining damages
under 13 V.S.A. § 3606. However, we have recognized that the elements of
damages under 13 V.S.A. § 3606 vary with the kind, condition, location,
and use of the damaged trees. Lavalette v. Noyes, 124 Vt. 353, 356, 205 A.2d 413, 416 (1964); Kilby v. Erwin, 84 Vt. 266, 273-74, 78 A. 1021, 1023
(1911) (injured party "entitled to a fair compensation for his actual
loss"). In this case, the court assessed damages based on Bean's testimony
as to the replacement value of the two shade trees plaintiffs cut down.
The court was entitled to rely on this testimony in calculating damages.
See 12 V.S.A. § 1604 (owner of property competent witness to testify to
property's value). We therefore conclude that the court's damages
calculation was appropriate.
¶ 31. Finally, we address plaintiffs' claim that the trial court
erred in awarding compensatory and punitive damages for invasion of
privacy. Plaintiffs maintain that their intrusion of defendants' privacy
was not "substantial" enough to warrant a damages award, particularly to
the extent the court's conclusion was based on plaintiffs' repeated
complaints to police and health inspectors. Plaintiffs also assert that
because the alleged harassment occurred "within the public view," it cannot
support an invasion of privacy claim. Finally, plaintiffs argue that the
trial court improperly relied on testimony from prior owners of the B/C
lot in arriving at its conclusion.
¶ 32. Defendants presented evidence at trial that plaintiffs,
particularly Mrs. Pion, regularly harassed them. Bean testified that Mrs.
Pion called him highly offensive names, threatened to drive him off the
property as she had previous owners, and informed him that she would
"fence [him] in like the dog that he is." Bean also stated that Mrs. Pion
harassed their guests. Ms. Clapper stated that she does not go into the
yard because Mrs. Pion verbally harasses her, including telling her that
Bean is cheating on her. As a result of Mrs. Pion's behavior, Ms. Clapper
is under medical care, and is taking anti-depressant medications.
¶ 33. Bean testified that Mrs. Pion regularly filed false police
complaints alleging that defendants were engaging in improper activities,
such as fighting or walking around in their underwear. As a result, for a
time, the police visited defendants' home two to three times per week.
Plaintiffs also complained to health department officials that defendants
were discharging sewage onto plaintiffs' property. These complaints were
never substantiated. Over plaintiffs' objections, previous owners of the
B/C lot testified to a similar course of harassment.
¶ 34. Based on the evidence, the court concluded that plaintiffs had
invaded defendants' privacy, and it awarded defendants compensatory damages
for the resulting mental distress they had suffered. The court found that
plaintiffs had engaged in a persistent pattern of intrusive conduct that
amounted to "hounding." It concluded that plaintiffs had tried to drive
defendants from their home by filing false complaints with authorities and
"hurling insults and threats." The court explained that, although
legitimate complaints to authorities about suspected legal violations
should not form the basis of an invasion of privacy claim, repeated false
complaints like those made here, could support such a claim. In this
case, the court explained, plaintiffs' complaints were motivated by their
malicious plan to drive defendants from their home. The court found the
testimony of prior B/C owners "admissible and relevant evidence" under
V.R.E. 404(b) of plaintiffs' motives and their plan to force defendants
from their home.
¶ 35. "The right of privacy is the right to be left alone." Denton
v. Chittenden Bank, 163 Vt. 62, 68-69, 655 A.2d 703, 707 (1994) (internal
quotation marks and citation omitted). To establish an invasion of
privacy, defendants needed to show that plaintiffs intentionally
interfered with their interest in solitude or seclusion in a way that
would be highly offensive to a reasonable person. Id. at 69, 655 A.2d at
707-08. The intrusion must be substantial. Id.
¶ 36. The trial court's conclusion that plaintiffs invaded
defendants' privacy is well-supported by the record. As the trial court
found, plaintiffs harassed defendants by verbally accosting them and their
guests, cutting down their trees, and filling in a streambed behind their
home. Ms. Clapper testified that she no longer goes out into her yard
because of the harassment, and plaintiffs' actions have caused her mental
anguish. Due to plaintiffs' repeated false complaints to the police and
health inspectors, the police visited defendants' home two to three times
per week. Health inspectors visited defendants' home as well. It is
immaterial under Denton that most of this harassment occurred in
defendants' backyard, rather than inside their home. See id. at 68-69,
655 A.2d at 707. The evidence amply shows that plaintiffs intentionally
and substantially intruded on defendants' solitude and seclusion. See id.
at 69, 655 A.2d at 707-08.
¶ 37. Plaintiffs have not demonstrated that the court erroneously
relied on the testimony of prior owners of the B/C lot in reaching its
conclusion. Prior B/C lot owners testified that plaintiffs harassed them
in an effort to force them to vacate the B/C property. The trial court
admitted this testimony because it supported defendants' claim that
plaintiffs were similarly trying to drive them off the B/C lot. See V.R.E.
404(b) (evidence of other bad acts admissible to prove motive or plan); see
also Roy, 173 Vt. at 434, 801 A.2d at 706-07. The court did not abuse its
discretion in admitting this testimony. See Roy, 173 Vt. at 434, 801 A.2d
at 706.
¶ 38. We also reject plaintiffs' assertion that their repeated false
complaints to police and health inspectors should not form the basis of an
invasion of privacy claim. Unlike the case on which plaintiffs rely, the
trial court here found that plaintiffs' complaints were not motivated by
genuine public safety or health concerns. See Beane v. McMullen, 291 A.2d 37, 46 (Md. 1972) (repeated complaints to zoning officials did not
constitute invasion of privacy where complaints resulted in finding of
zoning violations). The second case on which plaintiffs rely, Klipa v. Bd.
of Educ. of Anne Arundel County, 460 A.2d 601 (Md. 1983), is completely
inapposite, and offers no support for their argument. See id. at 607-08
(no cause of action for invasion of privacy where school board released
student's psychological records to principal of different school where
there was no evidence that any unwarranted publicity had been given to the
information contained in the record, nor that any person other than those
entitled to receive the information had been permitted access). The trial
court's finding that plaintiffs' repeated complaints to police and health
inspectors were designed to harass defendants is supported by the record,
and plaintiffs have not established that the court erred in taking this
behavior into account in reaching its conclusion. As noted above, the
trial court's findings amply support its conclusion that plaintiffs
invaded defendants' privacy.
¶ 39. Plaintiffs' challenge to the court's punitive damages award is
equally without merit. Plaintiffs maintain that their conduct was not
sufficiently "outrageous" to support a punitive damages award,
particularly with respect to Mr. Pion. They argue that the court
erroneously relied on testimony from previous B/C lot owners in
determining that punitive damages were appropriate. Finally, plaintiffs
argue that the court committed reversible error by failing to assess their
financial situation in calculating the proper amount of damages.
¶ 40. The trial court awarded defendants punitive damages based on
plaintiffs' extraordinarily "vicious disregard and disrespect for the
defendants' personal and property rights." The court found Mrs. Pion more
culpable than Mr. Pion, but concluded that "they have both acted
maliciously in an attempt to drive the defendants out of their home." The
court found Mr. Pion liable for $5000 in punitive damages, and Mrs. Pion
liable for $25,000.
¶ 41. Punitive damages are appropriate where there has been a
showing of actual malice. Schnabel v. Nordic Toyota, Inc., 168 Vt. 354,
362, 721 A.2d. 114, 120 (1998). A "showing of 'conduct manifesting
personal ill will or carried out under circumstances evidencing insult or
oppression, or even by conduct showing a reckless or wanton disregard of
one's rights' will suffice." Coty v. Ramsey Assocs., 149 Vt. 451, 464-65,
546 A.2d 196, 205 (1988) (quoting Shortle v. Cent. Vt. Pub. Serv. Corp.,
137 Vt. 32, 33, 399 A.2d 517, 518 (1979)).
¶ 42. In this case, the trial court found "overwhelming" evidence
that plaintiffs acted with malice. We agree. The record supports the
court's assessment of punitive damages against both plaintiffs. We need
not recount all of the court's factual findings in this regard; the record
is replete with examples of plaintiffs' egregious behavior. For example,
the trial court found that Mrs. Pion verbally harassed defendants on a
regular basis. The court found that both plaintiffs removed the original
northwest and northeast corner pins marking the B/C lot's northern
boundary, and also removed the replacement pins that defendants had
installed. Plaintiffs put up chain link fences inside the B/C lot
property line. During the pendency of this case, both plaintiffs tore
down a stone retaining wall on the B/C property line. When ordered by the
court to rebuild it, plaintiffs rebuilt it two feet closer to the B/C
house. The court's findings support its conclusion that Mr. Pion, as well
as Mrs. Pion, should pay punitive damages to defendants.
¶ 43. Plaintiffs next maintain that, even if punitive damages are
appropriate, the court's award should be vacated because the court failed
to take their financial status into consideration in making its award.
They cite Woodhouse v. Woodhouse, 99 Vt. 91, 155, 130 A. 758, 788 (1925),
in support.
¶ 44. In evaluating a punitive damages award, we defer to the trial
court. Roy, 173 Vt. at 447, 801 A.2d at 715. Punitive damages by their
nature cannot be precisely measured, and their assessment is largely
within the fact-finder's discretion. Coty, 149 Vt. at 466, 546 A.2d at
206. We will not overturn a punitive damages award unless it is
"manifestly and grossly excessive." Id. (internal quotation marks and
citation omitted). Although the court can award punitive damages only if
it has awarded compensatory damages, we do not require that there be any
particular ratio between the two awards. Roy, 173 Vt. at 447, 801 A.2d at
715. We have stated that, in assessing punitive damages, the fact-finder
must take into account the character and the standing of the party, the
malice or wantonness of the party's conduct, and the party's financial
status. Coty, 149 Vt. at 467, 546 A.2d at 207 (citing Woodhouse, 99 Vt.
at 155, 130 A. at 788).
¶ 45. In this case, the court awarded defendants $38,050 in
compensatory damages, and $30,000 in punitive damages. The trial court
did not inquire into plaintiffs' financial status before making its award.
However, plaintiffs did not raise this issue below, and they presented no
evidence regarding their ability to pay punitive damages. "Contentions
not raised or fairly presented to the trial court are not preserved for
appeal." Pinkham Engineering Assocs., 170 Vt. at 459, 752 A.2d at 33.
Plaintiffs have waived their right to raise this issue for the first time
on appeal. Id. There is no evidence to indicate that the court's
punitive damages award was "manifestly or grossly excessive." Coty, 149
Vt. at 466, 546 A.2d at 206. We therefore affirm the court's award.
¶ 46. In light of our conclusions above, we reject plaintiffs' final
argument that "justice and fairness" require reversal of the trial court's
order.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Justice Dooley sat for oral argument but did not participate in
this decision.
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