State v. Therrien

STATE_V_THERRIEN.92-477; 161 Vt. 26; 633 A.2d 272

[Filed 24-Sep-1993]

 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.


                                    No. 92-477


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      Orleans Superior Court

 Carolyn Therrien, Executrix of               May Term, 1993
 the Estate of Andrew Therrien


 Stephen B. Martin, J.

 Jeffrey L. Amestoy, Attorney General, and Philip J. Cykon and Conrad W.
   Smith, Assistant Attorneys General, Montpelier, for plaintiff-
   appellee

 Richard E. Davis and Richard E. Davis, Jr., of Richard E. Davis Assocs.,
   Barre, for defendant-appellant



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


      DOOLEY, J.   This proceeding began with a complaint filed in the
 Orleans Superior Court by the State of Vermont against Andrew Therrien
 charging him with violating Act 250, 10 V.S.A. {{ 6001-6108, and the
 Consumer Fraud Act, 9 V.S.A. {{ 2451-2462, in connection with his Salem
 Heights development in the Town of Derby.  Andrew Therrien died after trial
 but before judgment was entered against him.  His wife Carolyn was
 substituted as defendant, in her capacity as executrix and distributee of
 the estate of her husband.  The estate also became a defendant.  The court
 then issued its August 10, 1992 judgment nunc pro tunc effective July 9,
 1990.  Defendant Carolyn Therrien appeals from both the substitution and

 

 judgment order, arguing that the proceeding should have ended on her
 husband's death and that a part of the judgment dealing with water systems
 in the development was beyond the power of the court.  We affirm.
      In October 1975, Andrew Therrien was issued a land use permit pursuant
 to Act 250 allowing him to subdivide 100 acres in the Salem Heights
 development into seventy-seven residential lots.  Therrien failed to comply
 with the septic and well water system conditions in the permit; in fact, the
 superior court later found his noncompliance both willful and intentional.
 As a result of Therrien's failure to construct appropriate septic and well
 systems, numerous problems developed:  some residents had little or no water
 pressure, sewage effluent surfaced and stagnated, and water wells were
 eventually contaminated with fecal waste.
      Trial was concluded and the case taken under advisement on July 9,
 1990.  The court issued its findings, conclusions and order on July 10,
 1991, adjudging Therrien liable for violations of both Act 250 and the
 Consumer Fraud Act.  In the interim between trial and judgment, however,
 Andrew Therrien had died.  Therrien's death on June 15, 1991 was suggested
 upon the record on July 16, 1991.
      In its July 10, 1991 decision, the court cited Therrien for nine
 violations of his Act 250 land use permit, including installation of
 community water systems not allowed under his permit; installation of
 improper individual septic systems, community septic systems, and collection
 sewers; failure to install appropriate septic systems as required by the
 land use permit; failure to comply with the isolation distances for water
 wells and lines from septic systems; failure to show land purchasers the
 land use permit and associated documentation; and, finally, failure to seek

 

 appropriate amendments to the land use permit.  The court also found
 Therrien liable for unfair or deceptive acts and practices prohibited by the
 Consumer Fraud Act, 9 V.S.A. { 2453, for selling subdivision lots not in
 compliance with the land use permit.  The court ordered Therrien to remedy
 the water supply and septic system deficiencies.
      In late August 1991, the court granted the State's motion to
 substitute the estate of Andrew Therrien as a party for Andrew Therrien, but
 denied a motion to substitute defendant Carolyn Therrien.  In early
 September 1991, Andrew Therrien's estate was opened, and defendant was
 appointed executrix.  In February 1992, the court granted the State's
 motion to amend the July 10, 1991 judgment to bind the estate and executrix;
 in the alternative, the court also granted the State's motion for judgment
 nunc pro tunc effective July 9, 1990.  Thereafter, on August 10, 1992, the
 court entered the judgment order substituting the estate of Andrew Therrien
 and defendant as parties.  The defendant now appeals.(FN1)
      On appeal, defendant argues that:  (1) the State's cause of action does
 not survive the death of Andrew Therrien; (2) the judgment order could not
 be issued nunc pro tunc to a date before the death of Andrew Therrien; (3)
 it was error to name defendant as a party and impose personal liability on
 her; and (4) it was error to alter the conditions of paragraph 5 of the Act
 250 permit in the judgment order.  We take these arguments in order.
      Under V.R.C.P. 25(a)(1), a court may order the substitution of proper
 parties "[i]f a party dies and the claim is not thereby extinguished."  To

 

 meet the requirements of Rule 25(a)(1), the claim must survive the death of
 the party and a proper replacement party must be substituted.
      The second requirement was met here because an executor or
 administrator may defend actions that survive that were "commenced in the
 lifetime of the deceased."  14 V.S.A. { 1401.  Additionally, "[a] person
 having a contingent or other claim against a deceased person may prosecute
 the same against the executor . . . [or] devisees."  14 V.S.A. { 1417.
 Thus, under either { 1401 or { 1417, defendant in her capacity as executrix
 was a proper party for substitution.  Similarly, under { 1417, defendant in
 her capacity as devisee (distributee) was a proper party for substitution.
 Thus, if the State's claims against Andrew Therrien survived his death,
 defendant as executrix and distributee was a proper party for substitution.
 See McSurely v. McClellan, 753 F.2d 88, 99 (D.C. Cir.) (holding under
 virtually identical Federal Rule that "the distributee of a distributed
 estate is a 'proper party' for substitution under Rule 25(a)(1)"), cert.
 denied, 474 U.S. 1005 (1985).
      Defendant argues that the action abated on Andrew Therrien's death
 because all actions abated at common law and no statute authorizes survival
 of the claims in this case.  We agree that neither Act 250 nor the Consumer
 Fraud Act directly and explicitly authorizes survival of claims thereunder.
 We also find no general survival statute that explicitly addresses these
 claims.  Section { 1417 broadly states that when a party has a contingent
 or other claim against the deceased, "an action commenced against the
 deceased before death may be prosecuted to final judgment."  14 V.S.A. {
 1417.  Read literally, the section would allow for the survival of all
 actions.  This literal reading would, however, render superfluous the
 specific statutes on survival of actions.  See 14 V.S.A. {{ 1451-1453.

 

 Further, the history of { 1417 marks it as procedural, not substantive.  See
 Boyden v. Ward, 38 Vt. 628, 634 (1866) (discussing predecessor to { 1417 and
 noting that plaintiff could bring suit directly against executor or
 administrator when there was "mere omission" of appointment commissioners,
 but did not authorize claims otherwise barred).  The section specifies a
 proper procedure if a claim against the decedent otherwise survives.  See
 Kreichman v. Webster, 110 Vt. 105, 110, 2 A.2d 199, 201 (1938) (construing {
 1417 predecessor and holding that "if for any reason the appointment of
 commissioners is omitted, a claim which is not otherwise barred may be
 prosecuted against the executor or administrator") (emphasis added).
 Despite its broad wording, { 1417 does not direct the survival of claims at
 issue in this case.
      Defendant correctly notes that the survival statutes do not
 specifically allow for the survival of the actions brought under Act 250 and
 the Consumer Fraud Act.  See 14 V.S.A. {{ 1451 (survival of causes arising
 out of injury to personal or real property), 1452 (causes arising out of
 personal injuries), 1453 (actions arising under {{ 1451-1452 may be
 prosecuted for or against executor or administrator of estate)  It is
 important to recognize, however, that these statutes were adopted in the
 early nineteenth century. (FN2) If we accept defendant's argument, no claims
 created by the Legislature in this century would survive, whatever the

 

 practical consequences of abatement.  We find that result so unreasonable as
 to conflict with the basic purposes of Act 250 and the Consumer Fraud Act.
      Act 250 and the Consumer Fraud Act are remedial legislation.  See
 Fancher v. Benson, 154 Vt. 583, 586, 580 A.2d 51, 53 (1990); 1969, No. 250
 (Adj. Sess.), { 1 (purposes of Act 250 are remedial); 10 V.S.A. { 8221(b)(2)
 (courts authorized to "order remedial actions to be taken to mitigate hazard
 to human health or the environment" for any Act 250 violations).  Nothing
 demonstrates that better than the facts of this case.  Although the State is
 the plaintiff, the real beneficiaries of this action are the persons who
 bought lots in the Salem Heights development.  Andrew Therrien developed and
 sold the lots with widespread violations of the Act 250 permit that caused
 inadequate, failed and unhealthful sewer and water systems.  As a result,
 the purchasers faced difficult and unhealthful living conditions and
 incurred large expenses in correcting the permit violations.  The judgment
 order of the court requires these conditions to be corrected at the expense
 of the developer.
      The profits from the sale of lots in Salem Heights development went to
 Andrew Therrien and presumably are reflected in the amount present in his
 estate.  If this action abates, Therrien's devisees will reap the profit
 from the development while the lot owners incur the large expense of
 obtaining adequate sewer and water systems consistent with public health
 standards.  The basic protections created by Act 250 and the Consumer Fraud
 Act would be eviscerated, and defendant would receive a windfall of ill-
 gotten gains.
      There is an inconsistency between the remedial purposes of Act 250 and
 the Consumer Fraud Act, on the one hand, and the common-law abatement rule.

 

 We must apply remedial legislation liberally to accomplish its purposes.
 See Grenafege v. Department of Empl. Sec., 134 Vt. 288, 290, 357 A.2d 118,
 120 (1976).  Although we usually apply the plain meaning of legislation, our
 overall function is to give effect to legislative intent, deriving that
 intent "from the entire enactment, its reason, purpose and consequences" so
 that "the letter of a statute or its literal sense must yield where it
 conflicts with legislative purpose."  Lubinsky v. Fair Haven Zoning Bd., 148
 Vt. 47, 49-50, 527 A.2d 227, 228 (1986).  Therefore, the letter of the
 survival statutes, to the extent they can be read to exclude the survival of
 claims under Act 250 or the Consumer Fraud Act, must yield here for the very
 reason that it conflicts with the legislative purposes of those remedial
 acts.
      Other courts have faced the conflict between the common-law abatement
 rule and the purposes of remedial legislation and adopted a general rule
 that remedial actions survive the death of the defendant.  See Annotation,
 Survivability of Action Brought Under Truth in Lending Act, 53 A.L.R. Fed.
 431, 432 (1981) ("The general rule today on survival of statutorily created
 causes of action is that while actions to enforce a penalty do not survive
 the death of either party, remedial actions survive even though the damages
 assessed may technically be called penalties.") (footnotes omitted); see
 also Kelly v. Blue Cross & Blue Shield of Rhode Island, 814 F. Supp. 220,
 229 n.12 (D.R.I. 1993) (claim brought under ERISA, "a remedial, rather than
 penal, statute," survives participant's death); United States v. $47,409.00
 in U.S. Currency, 810 F. Supp. 919, 921 (N.D. Ohio 1993) (survivability
 "hinges upon the determination that the cause is remedial or punitive in
 nature[;] [t]he former causes survive, the latter do not"); Staub v.

 

 Triangle Oil Co., 349 A.2d 209, 210 (Del. 1975) (statutory action allowing
 recovery of possession of leasehold or termination of lease and recovery of
 treble damages survived death of lessee, allowing recovery to be enforced
 against landlord by administratrix of estate); Johnson v. Hinds Cty., 524 So. 2d 947, 951-52 (Miss. 1988) (mandatory injunction to enforce compliance
 with subdivision rules survives death of developer since developer's
 "personal representatives must be as accountable as was he, no more and no
 less"); Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. Ct. App. 1988) (claim
 under Texas Deceptive Trade Practices Act survives death of consumer).  We
 adopt this general rule.  Therefore, unless the Legislature says otherwise,
 we will presume that it intended that actions pursued under the remedial
 terms of protective legislation survive the death of the wrongdoer in order
 to remedy the injustices done. (FN3) In this case, we agree with the trial
 court "that the remedial purposes of the Consumer Fraud Act and Act 250
 would be best served by declining to find that the action against the
 decedent [Andrew Therrien] abated."   In the absence of a provision to the
 contrary, we hold that claims under Act 250 and the Consumer Fraud Act do
 not abate on the death of the seller of lots subject to the permit.  Because
 we find that the action against Andrew Therrien survives his death and
 allows substitution of his estate and defendant as parties following his
 death, we need not reach the issue of the propriety of the trial court's
 nunc pro tunc order of August 10, 1992.
      Defendant next claims that she cannot be held personally liable for
 the judgment rendered solely against her husband, nor can she be liable as a

 

 properly substituted party because the trial court never had personal
 jurisdiction over her.  She mischaracterizes the court's order.  It provides
 that defendant is substituted as a party in this case "solely in her
 capacity as executrix and as distributee" of the estate of Andrew Therrien.
 Defendant was not substituted as a party in her own right.  As a result,
 liability attaches to her only by and through her connection to the estate
 of Andrew Therrien and only to the extent of the assets in that estate.(FN4)
 Thus, if estate assets are insufficient to fund the remedial actions
 ordered, defendant will have no personal responsibility to pay for those
 actions.
      We also note that the issue of lack of personal jurisdiction has been
 raised for the first time on appeal.  Defendant's response to the State's
 motion to substitute defendant in her capacity as executrix and distributee
 made no mention of lack of personal jurisdiction, and therefore the claim
 has been waived.  See Myers v. Brown, 143 Vt. 159, 164-65, 465 A.2d 254, 257
 (1983) (defense of lack of personal jurisdiction is waived if not raised in
 timely manner).
      We recognize, as the court stated, "[Andrew] Therrien will have to
 make a substantial investment to correct all of the defects he has
 inflicted on the lot owners."  That investment has now passed to the
 defendant as a result of her substitution in her capacity as executrix and
 distributee.  As executrix, defendant will be responsible to pay and
 discharge "charges" on the "goods, chattels, rights, credits and estate" of
 the deceased.  14 V.S.A. { 906(2).  Although the estate will be complicated

 

 by compliance with the judgment order, the duties imposed on defendant are
 those she assumed when she became executrix of the estate.  Without
 minimizing the effort defendant must make as executrix and distributee, we
 do not find that the trial court's order rises to the level of imposing
 personal liability on her.
      Finally, defendant contests a provision of the court's order with
 respect to water systems.  In the 1974 Act 250 permit for the Salem Heights
 project, each subdivision lot was "approved for on-site water supply from a
 drilled or driven well provided that the well is located as shown on the
 plans and no closer than 100 feet to any subsurface wastewater disposal
 system."  The permit condition did not require Andrew Therrien to warrant
 the quality of the water, and the deeds given by him specifically disclaimed
 any such guarantee.  In the July 10, 1991 judgment order, however, the court
 ordered that Therrien obtain approval from the Vermont Agency of Natural
 Resources as to both quantity and quality for all unapproved wells serving
 more than one lot.  Obtaining approval would require defendant to hire a
 Vermont-registered professional engineer to prepare plans locating all
 wells, water lines and water disposal systems to determine whether the wells
 meet adequate isolation distances from sewage lines.  Defendant argues that
 the court's order is improper because it goes beyond the terms of the Act
 250 permit and rewrites the deed obligations.
      The order of the court has no direct effect on defendant's deed
 obligations and does not rewrite them.  The obligations imposed by the
 court's order are owed to the State, not the lot purchasers, and are not
 contractual in nature.  Further, the facts found by the trial court show
 that defendant constructed inadequate water systems that became polluted by

 

 improper and failed septic systems.  The court was within its remedial
 powers to make such an order that would bring the wells into compliance with
 modern health standards as of the date defendant obtains appropriate
 amendments to the Act 250 permit.  See 10 V.S.A. { 8221(b)(2) (court may
 "order remedial actions to be taken to mitigate hazard to human health or
 the environment" for Act 250 violations); 9 V.S.A. { 2458(b) ("court is
 authorized to render any . . . temporary or permanent relief, or both, as
 may be in the public interest" to remedy Consumer Fraud Act violations).

      Affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice



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                                    Footnotes


FN1.     Carolyn Therrien has not appealed the substitution of the estate of
 Andrew Therrien.

FN2.     The general list of actions that survive is derived from 1821, Ch.
 3, {{ 62-64.  The specific provision on personal injury actions is derived
 from 1847, No. 42, { 1.  While there have been amendments dealing with
 procedure, particularly to what is now 14 V.S.A. { 1453, there have been no
 substantive amendments to these provisions since their enactment.

FN3.    Survival of any remedial court order would not be barred even if a
 plaintiff requests both remedial and punitive relief, as the State did
 here.

FN4.    The lower court did not fully establish the nature and extent of
 the defendant's interest in the estate, or whether the defendant was the
 sole devisee under Andrew Therrien's will.