Murray v. Williams

Murray v. Williams  (98-492); 169 Vt. 625; 740 A.2d 791

[Filed 2-Aug-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-492

                               JUNE TERM, 1999

James Murray	                    }	APPEALED FROM:
	                            }
	                            }
     v.	                            }	Chittenden Superior Court
	                            }	
Mary Louise Williams	            }
	                            }	DOCKET NO. S0815-98 CnC

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

       Defendant Mary Louise Williams appeals the Chittenden Superior Court's
  judgment of  ejectment in favor of plaintiff James Murray.  On appeal,
  defendant argues that the stipulation  signed by both parties providing
  that defendant pay $677 in unpaid rent and vacate the premises by 
  September 30, 1998, was not a waiver of her right to redeem the tenancy. 
  We affirm.

       Defendant rents an apartment from plaintiff in South Burlington.  In
  June 1998, plaintiff filed  an ejectment proceeding against defendant as a
  result of an $875 rental arrearage.  On September 4,  the parties, both of
  whom were represented by counsel, entered into a stipulation of settlement 
  which provided in part (1) for a judgment of rent due to plaintiff in the
  amount of $677 (2) that  plaintiff waive any other claims for rent, costs,
  interests and fees, and (3) that defendant vacate the  South Burlington
  premises by September 30, 1998, and if she did not do so, that a writ of 
  possession issue at any time on or after October 1, 1998.  The court
  entered judgment based on the  provisions in the stipulation.  

       On September 28, defendant tendered payment of $677 as required under
  the stipulation and  judgment order.  At the same time, she filed a motion
  for discontinuance of the ejectment and for  redemption of the tenancy. 
  She argued that she paid the rental arrearage before a writ of possession 
  issued and, "[n]ow that defendant has paid the full amount conclusively
  determined as owing, the  ejectment action must be discontinued and
  defendant's tenancy redeemed."  The court denied the  motion, ruling that
  defendant negotiated an agreement and "should now live with it."  The court 
  acknowledged the law in Vermont which provides the right to pay a rental
  arrearage and redeem  tenancy until the issuance of a final judgment, see
  12 V.S.A. § 4773, but held that defendant  agreed to vacate the premises by
  a date certain and that the agreement must be held to be an implied  waiver
  of the statutory right to redeem.  A writ of possession issued on October
  6,  in response to  which defendant filed a motion to quash the writ.  The
  motion was denied, but the court, in  response to defendant's subsequent
  request, granted a stay of the writ of possession pending this  appeal.
	
       On appeal defendant argues that, where a property interest is
  involved, a waiver must be  voluntary, knowing, and intelligent.  She
  argues that the stipulation did not waive her statutory  right to redeem. 
  To the contrary, she contends her conduct reveals she understood 



  the stipulation to allow her to pay $677 by September 30 and remain in her
  apartment.  Defendant  asserts that if plaintiff intended that the
  stipulation relinquish her right of redemption, a provision  explicitly
  waiving her right to redeem should have been included in the agreement. 
  She argues that  consistent with Tucker v. Bushway, 166 Vt. 592, 689 A.2d 426 (1996) (mem.), holding that even  where there is a judgment of
  ejectment for non-payment of rent after a contested judicial hearing,  the
  tenant has the right to preserve the tenancy by complying with 12 V.S.A. §
  4773.  Defendant  also argues that when 12 V.S.A. § 4773 is read in pari
  materia with the Landlord and Tenant Act,  9 V.S.A. §§ 4451 - 4468, a
  waiver of the right to redeem should be unenforceable.  See id. § 4454 
  ("No rental agreement shall contain any provision which attempts to
  circumvent or circumvents  obligations and remedies established by this
  chapter").

       Section 4773 provides in part that before final judgment, if the
  defendant in an ejectment  action "pays into court the rent in arrear with
  interest and the costs of suit, such action shall be  discontinued."  12
  V.S.A. § 4773.  In the instant case, plaintiff and defendant entered into a 
  stipulation that defendant pay plaintiff $677 by September 30.  The
  stipulation of settlement  provides in part: 

     1. The plaintiff shall have a judgment for rent due and owing in the 
        amount of $677.  
     2. The plaintiff waives any other claims for rent, costs, interest 
        and fees.
     3. Defendant will vacate the premises at 276 White Street in So.  
        Burlington, Vermont by September 30, 1998.  If defendant has not 
        vacated by midnight on September 30, 1998, the plaintiff may have a 
        Writ of Possession issued in his favor at any time on or after 
        October 1, 1998.        

  Defendant argues that the stipulation is not a waiver of her right to
  redeem and that any ambiguity  as to whether she waived the right must be
  construed in her favor.  Although the ultimate question  of ambiguity of a
  contract or stipulation is a question of law, we review the court's
  consideration of  the factual circumstances of stipulated language with the
  same deference we give to other factual  findings; that consideration will
  not be set aside unless clearly erroneous.  See Osborn v. Osborn,  159 Vt.
  95, 99, 614 A.2d 390, 393 (1992).  Here the court found that the parties
  intended to  stipulate to a compromise judgment that reflected the benefits
  each sought to obtain.  

       Defendant's construction would have the stipulation bind plaintiff to
  accept a lesser amount  than was actually owed while allowing defendant the
  same right to redeem until final judgment as  established by statute.  The
  parties negotiated a stipulation which provided each of them with a 
  benefit and required each to forgo a legal remedy.  Defendant's
  interpretation would not require  any compromise on her part, yet would
  provide her with all the benefit.  Such a construction is  illogical. We
  disagree with that interpretation and hold that the stipulation
  unequivocally established  an accord and satisfaction between the parties:
  In exchange for reducing defendant's exposure if  plaintiff were to pursue
  the full amounts due to him, defendant agreed to vacate the premises by a 
  date certain.  We discern no ambiguity in the language or 



  meaning of the stipulation.

       Defendant argues, however, that she was permitted to redeem the
  tenancy because the writ of  possession had not been issued when she
  tendered payment, see Tucker, 166 Vt. at 592-93, 689 A.2d  at 427.  In
  Tucker we held that for purposes of § 4773, a judgment of possession is not
  final  - and therefore the tenancy can be redeemed - until the earlier of
  (a) the date of the issuance of the  writ of possession, or (b) the date by
  which a notice of appeal must be filed.  See id.  No  stipulation of
  settlement was at issue in Tucker, however, and therefore our task is not
  to choose  between the two options for determining the date of final
  judgment.  The stipulation is an  unambiguous compromise between the
  parties, relieving defendant of a portion of the rental arrears  and costs
  she owed to plaintiff, and ensuring plaintiff that the premises would be
  vacated by  September 30.  

       Finally, we disagree with defendant's contention that 9 V.S.A. § 4454,
  which prohibits  landlords and tenants from waiving the obligations imposed
  on them by the Landlord and Tenant  Act, should be construed to prohibit
  landlords and tenants from waiving the right of redemption.   Section 4454
  speaks precisely to what it covers - that is, "[n]o rental agreement shall
  contain any  provision which attempts to circumvent or circumvents
  obligations and remedies established by this  chapter . . . ."   9 V.S.A. §
  4454.  The right to redeem is created by 12 V.S.A. § 4773, a statute  that
  is not in the chapter of Title 9 containing the Landlord and Tenant Act. 
  We will not construe  the plain language of the statute prohibiting waivers
  of the obligations of landlords and tenants to  encompass statutory
  provisions beyond its clearly defined limits.  

       Affirmed.
       	
	BY THE COURT:

	_______________________________________
	Jeffrey L. Amestoy, Chief Justice

	_______________________________________
	John A. Dooley, Associate Justice

	_______________________________________
	James L. Morse, Associate Justice

	_______________________________________
	Denise R. Johnson, Associate Justice

	_______________________________________
	Marilyn S. Skoglund, Associate Justice