Tetreault v. Greenwood

Tetreault v. Greenwood  (95-390); 165 Vt 577; 682 A.2d 949

[Opinion Filed 21-Jun-1996]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 95-390

                         APRIL TERM, 1996


Karen and Roland Tetreault      }     APPEALED FROM:
                                }
                                }
     v.                         }     Windsor Superior Court
                                }
Frederick J. Greenwood, et al.  }     DOCKET NO. S0121-94WrC


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

       Plaintiffs appeal the trial court's grant of summary judgment to the
  attorney who represented them in the purchase of a home.  The attorney
  allegedly issued a certificate of title without uncovering violations of
  local and state permits.  We affirm.

       Defendant Philip Angell represented plaintiffs in their 1992 purchase
  of a residential property in Stockbridge.  He provided a title certificate
  stating that the property, which was covered by a subdivision permit,
  appeared to be in compliance with subdivision regulations because "there is
  no evidence on non-compliance of record."  The certificate excepted "use,
  zoning, and building restrictions" imposed by "statutes, ordinances and
  regulations" and "[a]ny facts which would be disclosed by a physical survey
  or inspection of the premises."

       Defendant concedes that he never saw plaintiffs' property, and it is
  undisputed that three permit violations were discovered by plaintiffs
  subsequent to their purchase:  (1) the location of the house violates the
  setback required by the local permit, (2) the water supply well is too
  close to the road and the house, and (3) the leach field sits too close to
  the house and the well.

       Defendant moved for summary judgment, arguing that his conduct fell
  within the degree of care commonly exercised by reasonable lawyers in
  Vermont and adding that "if there were any actionable malpractice on the
  part of this defendant, which is denied, it is not so apparent that it may
  be understood by a lay trier without the aid of an expert."  Plaintiffs did
  not file an affidavit or representation from any expert concerning the duty
  or standard of care required of an attorney in certifying title or
  ascertaining compliance with permit conditions.  The court granted
  defendant's motion and denied plaintiffs' cross-motion for summary judgment
  and motion for reconsideration.  The present appeal followed.

       Plaintiffs argue that defendant was negligent in failing to advise
  them of the existence and significance of the state and local permits,
  contending that it was not necessary for defendant to conduct a field
  inspection to discover this information.  Whether defendant should have
  discussed and explained the general role of state and local permits in
  Vermont -- a question we do not address -- is not the theory plaintiffs
  advanced to the trial court as the basis of defendant's liability. 
  Plaintiffs' complaint and cross-motion for summary judgment were based on
  the different proposition that defendant failed to discover and advise them
  that the property did not comply with state and municipal regulations and
  that these were encumbrances against the property.

 

       It is well settled that a party opposing summary judgment must inform
  the trial court of legal and factual reasons for the opposition, at risk of
  losing the motion and waiving the unvoiced reasons on appeal.  Fitzgerald
  v. Congelton, 155 Vt. 283, 295, 583 A.2d 595, 602 (1990).  Our review is
  thus limited to the question confronting the trial court:  whether
  defendant should have discovered the permit violations, and correlative
  thereto, whether expert testimony should have been required to establish
  defendant's liability for failure to discover and disclose permit
  violations not of record.

       Defendant contends that it would have taken a field inspection to
  discover the permit violations and that the degree of care commonly
  exercised by reasonable attorneys in Vermont does not call for a field
  inspection by the buyers' attorney.  Plaintiffs do not argue that defendant
  was required to perform a field inspection, nor do they advance any other
  theory to support their claim of liability.  Further, plaintiffs failed to
  counter defendant's evidence that it is not the practice of Vermont
  attorneys to make field inspections when certifying title.  Absent expert
  testimony that defendant failed to adhere to the standard of care commonly
  exercised by Vermont attorneys, plaintiffs effectively conceded the issue.

       Affirmed.



                              BY THE COURT:



                              __________________________________________
                              Frederic W. Allen, Chief Justice


                              __________________________________________
                              Ernest W. Gibson III, Associate Justice


                              __________________________________________
                              John A. Dooley, Associate Justice
 

                              __________________________________________
                              James L. Morse, Associate Justice


                              __________________________________________
                              Denise R. Johnson, Associate Justice