Guibord v. Scholtz

Guibord v. Scholtz (2004-372); 179 Vt. 623; 895 A.2d 202

2006 VT 22

[Filed 01-Mar-2006]


                                 ENTRY ORDER

                                 2006 VT 22

                      SUPREME COURT DOCKET NO. 2004-372

                             OCTOBER TERM, 2005

  Peter Guibord, Co-Executor of the      }     APPEALED FROM:
  Estate of Richard Guibord              }
                                         }
       v.                                }     Grand Isle Superior Court
                                         }     
  Joyce Scholtz                          }
                                         }     DOCKET NO. 35-9-99 Gicv

                                               Trial Judge: Ben W. Joseph

       In the above-entitled cause, the Clerk will enter:

       ¶ 1.     Plaintiff Peter Guibord appeals from the superior court's
  judgment in favor of defendant Joyce Scholtz denying the Guibords a
  prescriptive easement to cross over the Scholtzes' land.  Plaintiff
  contends the superior court's conclusion that the Guibords' use of the
  Scholtzes' land was permissive rested on factual findings that relied on
  inadmissible evidence and ignored relevant admissible evidence.  Plaintiff
  also contends the superior court erred in failing to presume the existence
  of the Guibords' alleged easement in the absence of admissible evidence to
  the contrary.  We affirm.
        
       ¶ 2.     Since 1916, the Guibords have owned a small island ("Guibord
  Island") off the northern tip of Grand Isle.(FN1)  In 1921, the Scholtzes
  acquired title to property at the tip of Grand Isle, just south of Guibord
  Island.  A private road runs across land to the south of the Guibord and
  Scholtz parcels and ends at the northern tip of the Scholtz property. 
  Plaintiff's family has often used the private road as a means of access to
  Guibord Island, driving to the northern end of the road, parking cars by a
  docking area, and using boats to transport people and supplies to the
  island.  In 1989, the Scholtzes, through counsel, sent a letter to the
  Guibords demanding that plaintiff's family end its practice of crossing the
  Scholtz property and parking cars there, or else begin paying a $700 fee
  per season.  The Guibords responded that they had obtained a prescriptive
  easement over the Scholtz property that allowed them to continue using the
  road and parking, and they continued to use the property without paying a
  fee.  In September 1999, defendant served plaintiff with a notice against
  trespass.  In response, plaintiff filed an action in the superior court
  seeking declaratory and injunctive relief.  Along with the complaint,
  plaintiff moved for a temporary restraining order and preliminary
  injunction allowing the Guibords to continue using the Scholtz property. 
  The superior court granted the temporary restraining order and scheduled a
  hearing on the motion for preliminary injunction for October 1999.  During
  the hearing, the parties agreed that the Guibords could continue to cross
  the Scholtz property until the resolution of the trial.

       ¶ 3.     A bench trial was held in March 2004, during which members of
  both families testified as to the extent and nature of the Guibords' use of
  the Scholtz property.  Due to her poor health at the time of the trial,
  defendant testified only by deposition.  In addition to testimony,
  plaintiff presented documents, photographs, and films purporting to
  demonstrate the Guibords' use of the Scholtz property from the time the
  family acquired Guibord Island.  In July 2004, the superior court granted
  judgment to defendant, concluding that the Guibords had not acquired a
  prescriptive easement because their use of the Scholtz property was not
  hostile for any continuous fifteen-year period.  The court found that "the
  Guibords had permission to cross the Scholtz property during all relevant
  times that members of their family owned the Island before 1989."  The
  court based this conclusion primarily on its finding that "[i]n light of
  all the evidence and considering the demeanor of the witnesses, . . . the
  testimony of [the Scholtzes] was credible and the testimony of [the
  Guibords] that permission was never given was not credible."  This appeal
  followed.

       ¶ 4.     Plaintiff first argues that the superior court's factual
  findings were not supported by sufficient admissible evidence.  Plaintiff
  finds fault with three elements of the superior court's findings: (1) the
  court's statement that it found the Scholtzes' testimony more credible than
  the Guibords'; (2) the court's disregard of the Guibords' documentary
  evidence; and (3) the court's reliance on inadmissible evidence from
  defendant's deposition testimony.  We review the court's findings of fact
  for clear error.  Mizzi v. Mizzi, 2005 VT 120, ¶ 7, 16 Vt. L. Wk. 379
  (mem.).  "Findings will be sustained on appeal unless, viewing the evidence
  in the light most favorable to the prevailing party, there is no credible
  evidence to support the findings."  Okemo Mountain, Inc. v. Lysobey, 2005
  VT 55, ¶ 8, 16 Vt. L. Wk. 210, 883 A.2d 757 (mem.).  Absent clear error, we
  will uphold the trial court's findings regardless of any inconsistencies or
  evidence to the contrary.  Id.

       ¶ 5.     Plaintiff claims that it was clearly erroneous for the court
  to conclude that the witnesses from the Scholtz family were more credible
  than the witnesses from the Guibord family.  We disagree.  While the
  Guibords presented exhibits to supplement their testimonial evidence, many
  of the key conclusions at trial depended on which side's testimony was more
  credible, especially the crucial factual determination of whether the
  Guibord's use of the Scholtz property was hostile or permissive.  To
  establish a prescriptive easement, the Guibords were required to show that
  their use of the Scholtz property was open, notorious, hostile, and
  continuous during a fifteen-year period.  Buttolph v. Erikkson, 160 Vt.
  618, 618, 648 A.2d 824, 825 (1993) (mem.).  No prescriptive easement could
  be established if the Guibords' use of the Scholtz property was with the
  permission of the Scholtz family.  Id.  

       ¶ 6.     The Guibords testified that they had not received permission
  to use the Scholtz property at any time, and the Scholtzes testified that
  the Guibords had always used their property with express permission.  The
  superior court had little to go on besides the credibility of the
  individual witnesses, and it was in the best position to make a credibility
  determination.  See Peckham v. Peckham, 149 Vt. 388, 390, 543 A.2d 267, 269
  (1988) ("We recognize that the trial court is in the unique position to
  assess the credibility of the witnesses and the weight of all the evidence
  presented.") (quotation omitted).  Plaintiff does not dispute the court's
  finding that the Guibords' testimony was not credible.  Instead, plaintiff
  argues that the superior court could not reasonably find the Scholtzes more
  credible than the Guibords because defendant testified only by deposition
  and not in person.  The fact that defendant did not testify in person did
  not limit the court's discretion in weighing her credibility.  If the court
  could not weigh the credibility of defendant's deposition testimony based
  on factors besides defendant's general demeanor, it could not logically
  consider that testimony at all, and the purpose of allowing such testimony
  would be defeated.  

       ¶ 7.     Even if the deposition was insufficient to allow a
  credibility determination, the court could have considered defendant's
  demeanor when she testified in person at the preliminary injunction
  hearing.  Plaintiff points out that when defendant testified at that
  hearing, she contradicted herself.  During the hearing, plaintiff
  confronted defendant with a two-page letter in which the Guibords and
  Scholtzes apparently stated that both families possessed prescriptive
  easements along the entire length of the private road leading to the
  southern boundary of the Scholtz property.(FN2)  Defendant first testified
  that she had read and signed the letter, then, after a recess, denied
  having seen the first page of the letter.  While this reversal could indeed
  call defendant's credibility into question, it was not clearly erroneous
  for the trial court to determine that defendant's testimony was nonetheless
  credible.  The nature of this dispute was such that certain parts of both
  sides' testimony could have been interpreted as self-serving and
  unreliable.  We cannot conclude that the superior court's determination of
  the relative credibility of the Guibords and the Scholtzes was clear error
  based on a single inconsistency in defendant's testimony.

       ¶ 8.     Nor may we overturn the court's factual findings because the
  findings ignore substantive evidence supporting plaintiff's position. 
  Plaintiff argues that the court was required to explain why it did not
  accept the disputed letter and other documentary evidence as conclusive
  evidence of the Guibords' easement.  Besides the aforementioned letter, the
  other documents included letters indicating an agreement to share the costs
  of keeping up the private road, as well as papers relating to a dispute in
  which the parties opposed their neighbors' attempt to change the location
  of the road.  These documents could have supported an inference that the
  Guibords possessed a prescriptive easement, but the superior court
  implicitly rejected such an inference by crediting the Scholtzes' testimony
  that the Guibords' use of the Scholtz property was permissive.  The court
  was not required to mention plaintiff's documentary evidence explicitly. 
  While "the trial court must make findings upon all material issues raised
  by the pleadings and the evidence," Harman v. Rogers, 147 Vt. 11, 19, 510 A.2d 161, 166 (1986), " '[t]he law does not contemplate that the trial
  court should re state the evidence nor report all the subordinate facts.' "
  Valeo v. Valeo, 132 Vt. 526, 531, 322 A.2d 306, 310 (1974) (quoting
  McKinney v. Kelley, 120 Vt. 299, 303, 141 A.2d 660, 664 (1957)).  As we
  have stated above, we will not overturn the court's findings based on the
  presence or weight of contrary evidence.  Okemo Mountain, Inc., 2005 VT 55,
  ¶ 8.

       ¶ 9.     We agree with plaintiff, however, that the superior court
  erred in making findings that relied on inadmissible evidence.  During her
  deposition, defendant testified at length regarding her father's grant of
  permission to the Guibords to cross the Scholtz property using the private
  road.  Some of this testimony referred to periods of time before
  defendant's birth.  Defendant was born in 1931, and testified during her
  deposition that her earliest memories were from the late 1930s.  The court
  ruled that defendant's testimony referring to her father's actions during
  the 1920s was inadmissible because it was not based on defendant's personal
  knowledge.  When the court issued its decision, however, it made findings
  of fact regarding events that took place during the 1920s, including its
  findings that defendant's father had invited the Guibords to cross their
  land in the 1920s and that defendant's father owned the only key to a
  locked gate blocking unauthorized access to the Scholtz property.  The only
  evidence in the record supporting these findings was defendant's testimony,
  and that testimony had already been ruled inadmissible.  Thus, it was clear
  error for the court to make these findings.

       ¶ 10.     Plaintiff next contends that the superior court's legal
  conclusion must be overturned because of its erroneous factual findings. 
  We will not reverse the court's decision based on an erroneous finding if
  it was not essential to the decision.  Peckham,149 Vt. at 390, 543 A.2d  at
  269.  Plaintiff argues that without the erroneous findings, a presumption
  arises that the Guibords established a prescriptive easement between 1916
  and the late 1930s because there was no evidence from that period showing
  that permission existed for the Guibords to use the Scholtz property.  In
  making this argument, plaintiff relies on "[t]he general rule . . . that
  open and notorious use will be presumed to be adverse and under a claim of
  right, unless there is found an exception which rebuts that presumption,
  such as evidence of permission."  Buttolph, 160 Vt. at 618, 648 A.2d  at
  825.  We hold that no such presumption was established because plaintiff
  failed to show open and notorious use prior to the late 1930s.  See id.
  (stating that "open and notorious use will be presumed to be adverse")
  (emphasis added).  

        
       ¶ 11.     Other than the documents establishing each family's title to
  its respective parcel, the record is almost entirely devoid of evidence
  properly admitted at trial relating to the Guibords' use of their parcel or
  the Scholtz property prior to the late 1930s.  Plaintiff identifies several
  undated photographs, as well as silent film footage, dated between 1935 and
  1937, depicting the Guibords' use of both parcels.  This evidence was not
  sufficient to demonstrate the Guibords' open, notorious, and continuous use
  of the parcel for a fifteen-year period prior to the late 1930s.  Even
  absent evidence of permission, the superior court was not required to
  presume the establishment of a prescriptive easement during that period,
  and thus, the court's erroneous findings were not essential to its
  decision.

       Affirmed.               


       BY THE COURT:
       


  _______________________________________
  Paul L. Reiber, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Brian L. Burgess, Associate Justice

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                                  Footnotes



FN1.  Plaintiff contends the parcel is not an island because it can be
  reached from the northern tip of Grand Isle when the water is low.  As this
  factual question was resolved in defendant's favor by the superior court
  and is not relevant to the questions presented on appeal, we refer to the
  parcel as an island.

FN2.  This letter was related to a previous dispute in which the Guibords and
  Scholtzes acted together to prevent their neighbors to the south from
  altering the road.  Defendant claims the dispute and the letter refer only
  to the parties' rights to cross the lands south of the Scholtz property. 
  We need not resolve the question of the letter's meaning.  To the extent it
  rebuts evidence of permission, the court implicitly rejected this
  inference; to the extent it supports a claim of easement by estoppel,
  plaintiff failed to raise such a claim below, and we therefore do not
  address it.  Noble v. Kalanges, 2005 VT 101, ¶ 28 n.5, 16 Vt. L. Wk. 291,
  886 A.2d 767. 886 A.2d 767.