Bull v. Pinkham Engineering Assocs.

Annotate this Case
Bull v. Pinkham Engineering Assocs. (98-431); 170 Vt. 450; 752 A.2d 26

[Filed 21-Apr-2000]


       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. 98-431


John W. and Melinda H. Bull	                 Supreme Court

                                                 On Appeal from
     v.	                                         Addison Superior Court

Pinkham Engineering Assoc. Inc.	                 September Term, 1999



Michael S. Kupersmith, J.

James W. Runcie of Ouimette & Runcie, Vergennes, for Plaintiffs-Appellees.

Michael B. Clapp, Burlington, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.  This appeal concerns a lawsuit in which landowners
  allege that the  engineering firm they hired breached its duty to properly
  survey their proposed residential  subdivision, thereby causing them to
  incur legal fees in a related lawsuit and to lose an  opportunity to
  develop a portion of their property.  Following an evidentiary hearing, the 
  superior court awarded plaintiffs John Bull and Melinda Hinsdale (formerly
  Bull) $55,000 in lost  profits and $15,391 in attorney's fees and expenses
  for defending the prior related claim.   Defendant Pinkham Engineering
  Associates, Inc. appeals that judgment, arguing that (1) plaintiffs' 
  claims are barred by the three-year statute of limitations governing
  actions seeking compensation  for damages to personal property; (2) the
  record does not support the trial court's findings  concerning the
  contractual duty owed by defendant to plaintiffs and the amount of damages 
  caused by defendant's conduct; and (3) the doctrine of collateral estoppel
  bars plaintiffs from  claiming that defendant's survey was incorrect.  On
  cross-appeal, plaintiffs claim that they are  entitled to prejudgment
  interest on their damage awards.  We affirm the trial court's decision, 
  except that we grant plaintiffs' request for prejudgment interest on the
  award of attorney's fees.

 

       The trial court made the following findings.  In 1986, plaintiffs
  bought a farm in  Ferrisburgh, Vermont.  Shortly thereafter, they began to
  look into the possibility of subdividing  a portion of the farm for the
  development of residential lots.  They enlisted the help of Mrs. Bull's 
  brother, Clark Hinsdale, a licensed real-estate broker who had experience
  in subdividing and  developing property.  They decided to develop
  thirty-five acres located on the westerly portion  of the farm, a woodland
  area with little or no agricultural value.  Mr. Hinsdale prepared a 
  preliminary sketch laying out fifteen lots for a subdivision to be called
  Steeplewood.  The sketch,  which was based on the Ferrisburgh tax map, 
  indicated that the southern boundary of the  subdivision coincided with the
  southern boundary of plaintiffs' property; however, the tax map  (and
  therefore the sketch) incorrectly located the southern boundary of
  plaintiffs' land a few  hundred feet to the north of the actual boundary.

       Upon Mr. Hinsdale's recommendation, plaintiffs hired defendant to do
  the surveying and  engineering work for the subdivision.  When Mr. Young,
  defendant's chief of surveying, indicated  that it would helpful to be able
  to refer to surveys of adjoining lands, Mr. Hinsdale provided  defendant
  with copies of the surveys of properties to the west owned by Cutting and
  to the north  owned by Pickett.  Mr. Hinsdale told Mr. Young that there was
  no need for defendant to re-survey the property lines between the Bull
  property and the Cutting or Picket properties.  Mr.  Hinsdale never asked
  defendant to complete a perimeter survey of the Bull property.

       In preparing its survey of the Steeplewood subdivision, defendant
  based all of the bearing  references on references in the Pickett and
  Cutting surveys, yet did not indicate on the  Steeplewood survey that it
  had done so.  Nor did defendant independently verify the accuracy  of the
  bearings contained in the prior surveys, even though it would have taken
  only a matter of  minutes to do so.  As a result, all of the bearings on
  the Steeplewood survey were off by  approximately eight and one-half
  degrees.

       Nor did defendant survey the southern boundary of the proposed
  subdivision to  determine whether the sketch taken from the Ferrisburgh tax
  map accurately depicted the  location of that

 

  boundary.  In fact, as noted, the tax map and sketch inaccurately depicted
  the southern boundary  of the subdivision (and plaintiffs' property) a few
  hundred feet to the north of the actual  boundary.

       Plaintiffs and Mr. Hinsdale proceeded to implement the subdivision
  plan in three phases.  In late 1989 or early 1990, after the first two
  phases were complete, plaintiffs decided to go ahead  with phase three,
  which involved the preparation and sale of lots five, seven, and eight.  In
  April  1990, Mr. Hinsdale asked defendant to stake out the center line of
  an east-west road running  through the subdivision and set the corner pins
  for the phase three lots.  Contrary to what it had  done  in the two
  earlier phases of the development, defendant set only the corner pins
  adjacent  to the road and did not mark the rear corners of the lots.  Nor
  did defendant inform plaintiffs or  Mr. Hinsdale that the rear corner pins
  for the three lots had not been set.

       In the spring of 1991, Mr. Hinsdale discovered that defendant had
  still not set the rear  corner pins of the phase three lots.   After
  advising Mr. Young that the pins had not been set, Mr.  Hinsdale reasonably
  expected defendant to do so.  In July 1991, plaintiffs sold lot five to
  William  and Geraldine Burke.  After purchasing the lot, Mr. Burke notified
  plaintiffs that he could not  find the pin marking its northeastern corner. 
  Mr. Bull and Mr. Hinsdale spent three hours trying  to locate the pin by
  compass, but were unable to do so.  Mr. Hinsdale then telephoned defendant 
  to report that he could not locate the pin.  When Mr. Hinsdale was informed
  that the pin had not  been placed yet, he requested that it be set
  immediately.

       Some time before September 11, 1991, the date defendant finally set
  the pin, Christopher  Hastings, the contractor hired by the Burkes to build
  their home, poured a foundation for the  house.  Because the northeastern
  corner marker had not been set, Mr. Hastings attempted to  locate the
  easterly boundary by taking a bearing from the southeastern corner of the
  lot.  Because  defendant's survey was off by eight and one-half degrees,
  the line the contractor determined for  the eastern boundary was incorrect,
  and part of the foundation was located beyond the boundary  line separating
  lots five and seven.  After  discovering the error, the Burkes halted
  construction  of the house, which was never completed.

 

       In December 1991, the Burkes filed suit against plaintiffs, Mr.
  Hastings, and defendant.  They alleged that (1) plaintiffs were negligent
  in failing to cause the  northeastern boundary pin  to be put in place in a
  timely manner; (2)  the incorrect compass bearing in their warranty deed 
  for lot five constituted a breach of warranty; (3) defendant negligently
  identified an incorrect  compass bearing on the eastern boundary of lot
  five; and (4) Mr. Hastings negligently placed the  foundation of their
  house.  After a jury trial, the superior court directed a verdict for all 
  defendants on all counts.  The court ruled that the first count failed as a
  matter of law because no  testimony was presented as to the cost of repair
  or the diminution in value of the property.  The  court held that the
  second count also failed as a matter of law because the compass bearings
  for  the subdivision were internally consistent and thus correct for
  purposes of conveying the title to  lot five.  A three-justice panel of
  this Court affirmed the decision.  See Burke v. Bull, No. 94-432  (August
  4, 1995) (mem.).

       In February 1996, plaintiffs brought suit against defendant, seeking
  to recover the legal  costs they incurred in defending against the Burke
  complaint, and the damages resulting from  their lost opportunity to
  include within the Steeplewood subdivision their land located to the  south
  of the southern boundary of the subdivision as depicted on defendant's
  survey.  Following  an evidentiary hearing, the superior court awarded
  plaintiffs $15,391 for legal costs associated with  defending the Burke
  complaint and $55,000 for lost development opportunities.  Defendant 
  appeals, raising several issues, and plaintiffs cross-appeal, arguing that
  the court erred in failing to  grant prejudgment interest on their damage
  awards.

       As an initial matter, we emphasize our standard of review.  We will
  not set aside the trial  court's findings unless they are clearly
  erroneous, and we will uphold the court's conclusions as  long as they are
  reasonably supported by the findings.  See Morgan v. Kroupa, 167 Vt. 99,
  104,  702 A.2d 630, 633 (1997).  Findings are viewed in the light most
  favorable to the judgment,  disregarding modifying evidence, and will not
  be disturbed merely because they are contradicted  by substantial evidence;
  rather, an appellant must show that there is no credible evidence to 
  support them.  See Bianchi v. Lorenz, 166 Vt. 555, 562, 701 A.2d 1037, 1041
  (1997).

 

                              I.  Lost Profits

                          A. Statute of Limitations

       Defendant first contends that plaintiffs' claim for lost profits is
  barred by 12 V.S.A. §  512(5), which provides that an action for damage to
  personal property caused by the act or default  of another must be
  commenced within three years after the cause of action accrues.   According 
  to defendant, § 512(5) governs because the nature of the claimed harm is
  the relevant inquiry, and  in this case the nature of the harm is
  plaintiffs' loss of cash, which is personal property.  We find  no merit to
  this argument.

       Plaintiffs' claim for lost profits stemming from defendant's alleged
  breach of its  contractual duty cannot be construed as claim for damage to
  personal property.  Therefore, the  claim is governed by 13 V.S.A. § 511,
  the "catchall statute that applies to civil actions generally."  Fitzgerald
  v. Congleton, 155 Vt. 283, 287, 583 A.2d 595, 598 (1990).  In cases such as
  this, where  there is no claim of damage to personal property, we have held
  that § 511 applies to actions  seeking damages for economic loss, including
  loss stemming from injury to real property.  See,  e.g., Investment
  Properties, Inc. v. Lyttle, ___ Vt. ___, ___, 739 A.2d 1222, 1228 (1999) (§
  511  governs indemnity action seeking money damages resulting from
  defective flooring in  condominiums); Congdon v. Taggart Brothers, Inc.,
  153 Vt. 324, 325, 571 A.2d 656, 657 (1989)  (§ 511 governs action against
  builder for damages resulting from fire allegedly caused by negligent 
  design and construction of building); Alpstetten Ass'n v. Kelly, 137 Vt.
  508, 513, 408 A.2d 644,  646 (1979) (§ 511 governs claim alleging tortious
  act resulting in interference with use and  enjoyment of real property
  governed); Union School District No. 20 v. Lench, 134 Vt. 424, 425,  365 A.2d 508, 509 (1976) (§ 511 governs claim against architect for economic
  loss resulting from  negligent repair of roof); cf. Stevers v. E.T. & H.K.
  Ide Co., 148 Vt. 12, 13, 527 A.2d 658, 659  (1987) (§ 512(5) governs claim
  alleging that insecticide killed one cow and injured others).

       Defendant correctly states that it is the nature of the harm done,
  rather than the plaintiff's  characterization of the cause of action, that
  determines which statute of limitations governs.  See 

 

  Fitzgerald, 155 Vt. at 288, 583 A.2d  at 598.  Here, plaintiffs incurred
  economic loss as the result  of not being able to develop two additional
  lots on their property.  The nature of the harm done  is the diminution of
  the value of their real  property rather than damage to personal property. 
  Accordingly, the claim is governed by the six-year statute of limitations
  contained in § 511.  If  we were to accept defendant's reasoning that cash
  is personal property, and thus any claim of  economic loss is subject to §
  512(5), then virtually all contract actions would be subject to a three-
  year statute of limitations, contrary to established law.

       Defendant asserts, however, that even if § 511 governs, plaintiffs'
  cause of action accrued  in 1987, when plaintiffs received defendant's
  survey and were put on notice of its defects.  See  University of Vermont
  v. W.R. Grace & Co., 152 Vt. 287, 290-91, 565 A.2d 1354, 1357 (1989) 
  (cause of action governed by § 511 accrues when plaintiff discovers, or
  through reasonable  diligence should have discovered, injury).  We
  disagree.  Defendant failed to meet its burden of  proving that the
  six-year limitations period expired before plaintiffs initiated their
  lawsuit.  See  V.R.C.P. 8(c) (statute of limitations is affirmative
  defense); Monti v. Granite Savings Bank and  Trust Co., 133 Vt. 204, 209,
  333 A.2d 106, 109 (1975) (defendant has burden of establishing 
  statute-of-limitations defense). Although the trial court declined to make
  a finding on when the  Bulls knew or should have known that the southern
  boundary depicted on defendant's survey was  inaccurate, the evidence
  indicated that not until after July 1991, when the problems with the  Burke
  lot arose, did plaintiffs suspect that the southern boundary depicted on
  the survey (as well  as the tax map and Mr. Hinsdale's original subdivision
  sketch) might not accurately reflect the  actual southern boundary of their
  property.  See Capital Candy Co. v. Savard, 135 Vt. 9, 12, 369 A.2d 1361,
  1362 (1976) (trial court's inability to make finding on issue is equivalent
  of making  finding against party with burden of proof on issue).

       At best, from defendant's perspective, the evidence indicated that
  sometime in 1991 Mr.  Bull  observed the southern boundary of the
  subdivision in the field and recognized that it was  located north of the
  actual southern boundary line of his property.  Further, notwithstanding 
  defendant's 

  

  assertions to the contrary, none of the evidence at trial demonstrated that
  plaintiffs acted  unreasonably in assuming, until that time, that
  defendant's survey accurately depicted the  southern boundary of their
  property.  Given that  plaintiffs' lawsuit was filed within six years of 
  1991, it was not barred by § 511.

                              B. Breach of Duty

       Defendant next claims that the trial court erred in concluding that
  the engineering firm  owed plaintiffs a duty to verify the southern
  boundary of their property.  Defendant reasons as  follows.  Plaintiffs,
  not defendant, established the outer boundaries of the proposed
  subdivision,  as depicted on Mr. Hinsdale's preliminary sketch.  Because
  plaintiffs never specifically asked  defendant to verify those outer
  boundaries, the firm's only duty was to make an accurate survey  of the
  lots within the subdivision boundaries established by plaintiffs.  Because
  the survey was  internally consistent, defendant did not breach its duty to
  plaintiffs.  This argument is neither  persuasive nor supported by the
  record.

       The trial court made undisputed findings that (1) the preliminary
  sketch of the proposed  subdivision provided to defendant by Mr. Hinsdale
  indicated that the subdivision's southern  boundary was to coincide with
  the southern boundary of plaintiffs' property; (2) defendant knew  that the
  preliminary sketch was based upon the Ferrisburgh tax map; (3) tax maps are
  not  intended to be used in establishing the boundaries on any survey, and
  it would not be in  accordance with professional surveying standards to do
  so; (4) the physical characteristics of  plaintiffs' property should have
  indicated to defendant that the tax map (and therefore the sketch)  might
  not have accurately depicted the southern boundary of the property; (5)
  without  attempting to verify the accuracy of the southern boundary of the
  proposed subdivision, or  stating on its survey that the bearings indicated
  therein were based exclusively on other unverified  surveys, defendant used
  the tax map to guess at the location of the southern boundary line of the 
  property (and thus the subdivision).

       The trial court also found that professional survey standards require
  that a survey must  verify 

 

  the perimeter boundaries of the parcel to be surveyed.  Defendant contends
  that this finding  cannot stand because plaintiffs failed to present expert
  testimony to support it.  In response,  plaintiffs point to testimony
  indicating that defendant was aware that preparing an accurate  survey
  required researching the deeds of adjoining owners to verify the perimeter
  boundaries of  the land to be surveyed.

       Given the nature of a survey, see Black's Law Dictionary 1296 (5th ed.
  1979) (defining  "survey" as process by which "land is measured and its
  boundaries and contents ascertained"), we  doubt that expert testimony is
  required to support the challenged finding.  See Estate of Fleming  v.
  Nicholson, 168 Vt. 495, 497-98, 724 A.2d 1026, 1028 (1998) ("Where a
  professional's lack of  care is so apparent that only common knowledge and
  experience are needed to comprehend it,  expert testimony is not required
  to assist the trier of fact in finding the elements of negligence.");  cf.
  Hostetler v. W. Gray & Co., 523 So. 2d 1359, 1368 (La. Ct. App. 1988)
  (engineering company  breached duty owed to purchasers of lot by relying on
  previous preliminary topographical survey  to determine location of
  easement without independently verifying accuracy of survey).  In any 
  event, we need not decide this issue because the unchallenged findings
  cited above, even when not  bolstered by the challenged finding, support
  the trial court's conclusion that defendant breached  its duty to use
  reasonable care in surveying the proposed subdivision.  See Peckham v.
  Peckham,  149 Vt. 388, 390, 543 A.2d 267, 269 (1988) (erroneous
  nonessential finding does not require  reversal); see also Peters v.
  Mindell, 159 Vt. 424, 429, 620 A.2d 1268, 1271 (1992) (every contract 
  includes implied duty to perform with care, skill, reasonable expedience,
  and faithfulness);   Thompson v. Green Mountain Power Corp., 120 Vt. 478,
  485, 144 A.2d 786, 790 (1958)  ("Foreseeable consequences may be
  significant in the determination of the scope of legal duty and  whether a
  duty of care has been violated.").

                                 C. Damages

       Next, defendant contends that the evidence does not support the
  court's conclusion that  plaintiffs were entitled to $55,000 in lost
  profits as the result of not being able to develop their  land

 

  located to the south of the southern boundary of the subdivision depicted
  in defendant's survey.  Again, we disagree.  Mr. Bull testified at trial
  that after the sale of lots fourteen and fifteen - the  two southernmost
  lots depicted on the survey - plaintiffs' land located to the south of
  those lots  could not be developed into two additional lots because there
  was no longer any access to them.  He also testified that the isolated
  parcel could not be reached from, and was of no value to,  the  main farm. 
  Defendant did not contest this evidence at trial.  Based on Mr. Bull's
  unchallenged  testimony, the trial court found that there was no access for
  possible development of plaintiffs'  land south of the subdivision.

       Defendant asserts on appeal that the isolated parcel can be accessed
  by building another  road outside the subdivision, and thus the court
  should have calculated the damages based on the  increased cost in
  developing the parcel independently of the Steeplewood subdivision.  We 
  conclude that this argument was not properly preserved.  As noted,
  plaintiffs presented  uncontested evidence that there was no access to the
  parcel after lots sixteen and seventeen were  sold.  Defendant did not
  cross-examine plaintiffs or present its own testimony on this point, even 
  though it had the burden of showing that plaintiffs could have mitigated
  their damages.  See  Cartin v. Continental Homes of New Hampshire, 134 Vt.
  362, 367, 360 A.2d 96, 100 (1976)  (while there is general duty to mitigate
  damages, burden of showing that mitigation could have  been accomplished is
  on party asserting it).  In its response to plaintiffs' proposed findings, 
  defendant made the following singular statement:  "The Bulls could access
  the area in question  through their property facing on Dakin Farm Road." 
  Apart from an exhibit indicating the  existence of this road, the record
  contains no evidence supporting this statement.

       We do not believe that defendant's single statement following
  completion of the four-day  evidentiary hearing adequately preserved for
  appeal his argument that plaintiffs' damages for lost  profits should be
  limited to the difference between the profit plaintiffs would have realized
  had  they developed the area in question as part of the subdivision, and
  the profit they would have  realized had they developed the property
  independently after discovering that defendant's survey  was incorrect.  

 

  Contentions not raised or fairly presented to the trial court are not
  preserved for appeal.  See  Lamphere v. Beede, 141 Vt. 126, 129, 446 A.2d 340, 341 (1982); Monti v. Town of Northfield, 135  Vt. 97, 99, 369 A.2d 1373, 1376 (1977) (matters raised for first time on appeal are not
  considered  on appellate review).  In order to effectively raise an
  objection, a party must present the issue with  specificity and clarity in
  a manner that gives the factfinder a fair opportunity to rule on it.  See 
  State v. Ringler, 153 Vt. 375, 378-79, 571 A.2d 668, 670 (1989).  Having
  failed to do so here,  defendant has waived any right to raise the issue
  for the first time on appeal.  Moreover, even if  we were to consider the
  issue, defendant plainly failed to meet its burden at trial of showing that 
  plaintiffs could have mitigated their damages. 

                   II.  Costs of Defending Previous Action

                          A. Statute of Limitations

       As with the lost-profits claim, defendant argues that plaintiffs'
  claim for defense costs was  barred by the three-year statute of
  limitations contained in 12 V.S.A. § 512(5).  We reject this  argument for
  reasons similar to those stated earlier with respect to the claim for lost
  profits.   Here,  the nature of the injury is loss of money - specifically,
  attorney's fees - due to defendant's  failure to properly survey
  plaintiffs' real property.  Thus, once again, the nature of the injury is 
  not damage to personal property, and the three-year statute of limitations
  is not applicable.  See  Fitzgerald, 155 Vt. at 293, 583 A.2d  at 601
  (six-year statute of limitation governs claim seeking  reimbursement from
  attorney for costs associated with securing return of child).  As we stated 
  before, if we were to consider every award of money damages to constitute
  damage to personal  property, irrespective of the source of the damages,
  then all contract actions would be subject to  a three-year statute of
  limitations, contrary to established law.
  
                             B. Proximate Cause

       Defendant next claims that the court erred in concluding that the
  engineering firm's  wrongdoing was a proximate cause of plaintiffs
  incurring legal costs to defend the first count of  the Burke complaint,
  which alleged that the Bulls were negligent in failing to cause a marker to 
  be

 

  placed in the northeastern corner of the lot they sold to the Burkes.  We
  find no merit to this  argument.  The evidence indicated that (1) in April
  1990, approximately fifteen months before  the Burkes purchased their lot
  from plaintiffs, plaintiffs asked defendant to set the pins for the  phase
  three lots, including lot five; (2) plaintiffs and Mr. Hinsdale reasonably
  assumed that  defendant put the pins in place in May 1990 and then again in
  the spring of 1991; (3) in July 1991,  when the Burkes reported that they
  could not find the northeastern corner pin on their lot, Mr.  Hinsdale and
  Mr. Bull searched for the pin without success; (4) Mr. Hinsdale called
  defendant and  was informed that the pin had not yet been set; (5) Mr.
  Hinsdale informed defendant that the pin  needed to be placed; (6) the pin
  was not placed until September 11, 1991; (7) some time between  July and
  September 1991, Mr. Hastings poured a foundation for the Burkes' house; and
  (8) when  defendant finally set the northeastern corner pin for the lot
  five on September 11, 1991, it became  clear that Mr. Hastings had extended
  the foundation onto an adjoining lot.  Given these facts, the  trial court
  correctly concluded that plaintiffs' defense costs were proximately caused
  by  defendant's wrongdoing.

       Seizing upon the trial court's observation that this is not a true
  indemnity case because the  Burkes did not prevail in their suit against
  the Bulls (and thus the Bulls were not legally obligated  to the Burkes),
  defendants argue that plaintiffs are not entitled to costs incurred in
  contesting a  count alleging that they, and not defendant, were negligent. 
  Again, this argument has no merit.  "There is a substantial body of case
  law which holds that where the wrongful act of one person  has involved
  another in litigation with a third person or has made it necessary for that
  other  person to incur expenses to protect his interests, litigation
  expenses, including attorney's fees, are  recoverable."  Albright v. Fish,
  138 Vt. 585, 591, 422 A.2d 250, 254 (1980); accord Wyatt v.  Palmer, 165
  Vt. 600, 602, 683 A.2d 1353, 1356-57 (1996) (mem.).  Regardless of whether 
  indemnity is the correct label for this action, Vermont law entitles
  plaintiffs to seek compensation  for their loss, and, without question, a
  proximate cause of that loss was defendant's wrongdoing.  If not for
  defendant's wrongdoing, plaintiffs would not have incurred legal costs in
  defending  against the Burke lawsuit.


 

                           C. Collateral Estoppel

       Defendant also asserts that the doctrine of issue preclusion bars
  plaintiffs from recovering  their costs related to defending count two of
  the Burke suit, a breach-of-warranty claim.  The  Burkes claimed that they
  did not receive good title to their lot because the survey that defendant 
  had performed for the Bulls erroneously identified the compass bearing for
  the eastern boundary  of the lot.  According to defendant, the doctrine of
  collateral estoppel precludes plaintiffs from  recovering costs in
  defending against this claim because in the Burke case plaintiffs argued,
  and  the trial court ruled, that the bearing reference was correct.

       This argument is not persuasive.  Collateral estoppel, or issue
  preclusion, bars the  subsequent relitigation of an issue that was actually
  litigated and decided in a prior case between  the parties, so long as
  there was a final judgment on the merits and the issue was necessary to 
  resolution of the action.  See Longariello v. Windham Southwest Supervisory
  Union, 165 Vt. 573,  574, 679 A.2d 337, 338 (1996) (mem.); American
  Trucking Ass'ns v. Conway, 152 Vt. 363, 370,  566 A.2d 1323, 1328 (1989). 
  The elements of issue preclusion are the following:

     (1) preclusion is asserted against one who was a party or in privity 
     with a party in the earlier action; (2) the issue was resolved by a 
     final judgment on the merits; (3) the issue is the same as the one 
     raised in the later action; (4) there was a full and fair opportunity 
     to litigate the issue in the earlier action; and (5) applying preclusion 
     in the later action is fair.

  Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587
  (1990).

       Here, at least two of the five elements are not met.  First, the
  issues in the two cases are  not the same.  In the Burke litigation, the
  issue was whether the Bulls had breached the warranty  of title.  In
  holding that they had not, the superior court  stated that the bearings in
  the survey  were "internally consistent" and thus correct "for the purposes
  of [transferring] title."  Therefore,  the Burkes  received title to the
  property shown as lot five on the Steeplewood survey, and no  breach of 
  warranty occurred.  In contrast, at issue in the present action is whether
  the bearing  is incorrect in relation to magnetic north, and whether that
  error led to the expenses incurred by  plaintiffs in the Burke 


 

  litigation.  Because the issues in the two cases are not the same,
  collateral estoppel does not apply.  See American Trucking, 152 Vt. at 369,
  566 A.2d  at 1327-28.

       Second, plaintiffs did not have a full and fair opportunity in the
  Burke proceedings to  litigate the principal question at issue in the
  instant case.  In determining whether collateral  estoppel should apply,
  courts must look to the circumstances of each case, including, among other 
  things, the incentive for the party (against whom estoppel is claimed) to
  litigate the issue.  See  State v. Stearns, 159 Vt. 266, 269-70, 617 A.2d 140, 141-42 (1992); Trepanier, 155 Vt. at 265, 583 A.2d  at 587.  Here,
  plaintiffs had no incentive to convince the factfinder in the Burke
  litigation  that the bearings on lot five as depicted in defendant's survey
  were incorrect in relation to  magnetic north.  The only fair and
  reasonable way for plaintiffs to litigate this issue in the context  of the
  Burke litigation was to file a cross-claim against defendant.  They did so,
  raising essentially  the same allegations that they make in the instant
  action.  By stipulation, defendant and plaintiffs  agreed to dismissal of
  the claim in the Burke litigation without prejudice.  Collateral estoppel
  does  not bar plaintiffs' claim here.

                       D. Allocation of Defense Costs

       Defendant's final argument is that the court's award of $15,391 in
  legal fees associated  with the first two counts of the Burke litigation is
  based on hearsay evidence and is otherwise  unsupported by the record.  At
  trial, plaintiffs submitted an exhibit that included all of the legal 
  bills that they incurred in defending against the Burke lawsuit.  The first
  two pages of the exhibit  summarized the bills and allocated the expenses
  attributable to the first two counts of the Burke  complaint.  Defendant
  objected only to those first two pages of the exhibit, arguing that they 
  were inadmissible under the hearsay rule because plaintiffs' attorney was
  not a witness and was  not available for cross-examination.  Defendant
  makes the same argument here, further  contending that, absent the two
  pages allocating defense costs, the court's award is unsupported  by any
  evidence and thus cannot stand.

       We find no abuse of discretion.  The attorney for the Hinsdales,
  co-defendants in the  Burke litigation, testified that plaintiffs' attorney
  was conservative in allocating defense costs  attributable

 

  to counts one and two of the Burke complaint, given that at least
  seventy-five percent of the  Burke trial concerned defendant's negligence
  in preparing the survey and its failure to place the  northeastern corner
  pin on lot five in a timely manner.  As for pre-trial costs, the bills for
  legal  services received after the Burkes added additional counts to their
  complaint indicated what fees  were attributable to which counts.  In
  short, even excluding the first two pages of the exhibit, the  court's
  award is amply supported by the bills entered into the record, the
  testimony of the  attorney for the Hinsdales, and the transcript from the
  Burke proceedings.

                         III. Pre-judgment Interest

       Plaintiffs argue on cross-appeal that the trial court erred by failing
  to grant them  prejudgment interest as a matter of right on their damage
  awards.  In a one-page argument, they  briefly assert that they are
  entitled to prejudgment interest because the amount of their damages  was
  readily ascertainable on a date certain.  We agree that plaintiffs'
  attorney's fees in the  underlying action were readily ascertainable at the
  time that they were incurred, but we conclude  that plaintiffs have failed
  to demonstrate that they were entitled to prejudgment interest on their 
  award for lost profits.

       "Prejudgment interest may be awarded as damages for detention of money
  due for breach  or default.  This interest is awarded as of right when the
  principal sum recovered is liquidated or  capable of ready ascertainment
  and may be awarded in the court's discretion for other forms of  damage." 
  Newport Sand & Gravel Co. v. Miller Concrete Constr., Inc., 159 Vt. 66, 71,
  614 A.2d 395, 398 (1992).  The principal rationale for awarding
  prejudgment interest as of right is that,  where damages are liquidated or
  readily ascertainable, "'the defendant can avoid the accrual of  interest
  by simply tendering to the plaintiff a sum equal to the amount of
  damages.'"  Agency of  Natural Resources v. Glen Falls Ins. Co., ___ Vt.
  ___, ___, 736 A.2d 768, 774 (1999) (quoting  Johnson v. Pearson Agri-Sys.,
  Inc., 350 N.W.2d 127, 130 (Wis. 1984)).

       We have little from the record to work with on this issue.  The trial
  court did not indicate  why it chose to deny prejudgment interest. 
  Plaintiffs make a rather sparse assertion that the  amounts of both awards
  are readily ascertainable, and defendant does not respond at all to their 
  argument.  We 

 

  agree with plaintiffs that the amount and allocation of their attorney's
  fees in the underlying  litigation were readily ascertainable, and thus
  plaintiffs have a right to prejudgment interest on  that award from the
  time they incurred the fees.  With respect to the claim for lost profits, 
  however, plaintiffs have failed to demonstrate that they are entitled to
  prejudgment interest as a  matter of right, and they do not argue that the
  trial court abused its discretion by failing to grant  prejudgment interest
  on that award.  Plaintiffs neither explain in detail how their lost profit 
  damages were readily ascertainable, nor cite any case law discussing the
  propriety of awarding  prejudgment interest on damage awards for lost
  profits.  Cf. Investors Title Co. v. Chicago Title  Ins., 983 S.W.2d 533,
  538  (Mo. Ct. App. 1998) (in suit for breach of contract, prejudgment 
  interest is generally not allowable on damage award for lost profits);
  Republic Textile Equip. v.  Aetna Ins., 360 S.E.2d 540, 545 (S.C. Ct. App.
  1987) (in negligence action, prejudgment interest  is generally not awarded
  on claims for lost profits or similar consequential losses).  Given the 
  paucity of the briefing, we make no general ruling on this point of law,
  but decline to disturb the  trial court's decision in this case not to
  award prejudgment interest on plaintiffs' damage award  for lost profits.

       The superior court's August 13, 1998 decision is affirmed in all
  respects, except that  prejudgment interest is granted on plaintiffs' award
  for attorney's fees incurred in the underlying  litigation.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice