Ravenwood Estates, Inc. v. Mason

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-170

                             MARCH TERM, 1991


Ravenwood Estates, Inc.           }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Bennington Circuit
                                  }
Karen Mason                       }
                                  }          DOCKET NO. 178-12-89Bc



             In the above entitled cause the Clerk will enter:


     Plaintiff is the owner of a mobile home park in Bennington and appeals
from an order that attorney's fees incurred in the course of the eviction of
defendant were not "costs" to be borne by defendant within the meaning of 12
V.S.A. { 4773.  We affirm that order, but on cross-appeal we reverse the
court's order directing that defendant pay rent into court during the pend-
ency of an appeal pursuant to 12 V.S.A. { 4853a.

     According to the stipulated facts, the court entered judgment in the
eviction action in favor of plaintiff for $680 in rent arrears and $62.70
in costs and sheriff's fees.  A judgment was also entered in plaintiff's
favor for $907.50 in attorney's fees, but the court allowed redemption of
the tenancy under { 4773 without requiring payment of the attorney fee
judgment, since the court ruled that statutory costs did not include such
fees.  The court was correct.  In re Appeal of Gadhue, 149 Vt. 322, 544 A.2d 1151 (1987); State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596
(1986).  Plaintiff's reliance on Anderson v. State, 147 Vt. 394, 395, 518 A.2d 360, ___ (1985) is misplaced.  We held in that case that when
attorney's fees are awarded, they are assessed as a part of "damages or
costs."  We did not imply that a statute requiring payment of costs, but not
mentioning attorney's fees, includes the latter within the former.

     However, the court erred in requiring defendant to pay her rent into
court during the pendency of this appeal, since { 4853a abates that require-
ment when the eviction proceeding is discontinued.  Nor is the trial court
correct in its reasoning that discontinuing payments into court pending the
outcome of the appeal deprives the plaintiff of rental payments guaranteed
by the statute.  The eviction was discontinued when defendant paid the rent
arrears and costs into court.  At that time defendant was no longer a
"tenant [who] is obligated to pay rent and has failed to do so . . . "
within the meaning of 12 V.S.A. { 4853a(d).

     The trial court's order with respect to costs is affirmed, and the
order requiring payment of rent into court is reversed.





                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice