Sweet v. Roy
Annotate this Case
Sweet v. Roy (99-230); 173 Vt. 418; 801 A.2d 694
[Filed 26-Apr-2002]
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. 1999-230
Jodi L. Sweet Supreme Court
On Appeal from
v. Bennington Superior Court
Marcien Roy, Leon Roy, and the June Term, 2000
Marcien and Mary Anne Roy Trust
John P. Wesley, J.
Geoffrey F. Walsh and Gregg Meyer, Vermont Legal Aid, Inc.,
Springfield, for Plaintiff-Appellee.
Christina A. Jensen of Lisman & Lisman, P.C., Burlington, for
Defendants-Appellants.
PRESENT: Dooley and Morse, JJ., and Toor Supr. J., and Gibson, J. (Ret.),
Specially Assigned
DOOLEY, J. Defendants Marcien Roy, Leon Roy, and the Marcien and
Mary Anne Roy Trust (the trust) appeal from a judgment entered in
Bennington Superior Court on a jury verdict in favor of plaintiff Jodi
Sweet. Defendants made several claims of error in a post-judgment motion
for judgment as a matter of law or for a new trial, and renew those
arguments here: (1) the trial court abused its discretion in admitting
evidence of defendants' prior bad acts; (2) the court erred in ruling
plaintiff was entitled to the protections of the Mobile Home Park Act, 10
V.S.A. §§ 6201-6266; (3) the trust was entitled to judgment as a matter of
law; (4) the jury's damage award should have been set aside; (5) it was
error to dismiss defendants' counterclaim for slander; and (6) the court
erred in excluding evidence of a threat made against defendants by an
alleged agent of plaintiff. We affirm.
The trial focused on events with respect to Jodi Sweet after she
purchased a mobile home located in the Royal Pine Villa Mobile Home Court
(the park), and with respect to others who owned homes in the park. The
park had been owned and managed by Marcien and Mary Anne Roy for twenty
years, but in 1993 ownership was transferred to the trust. The park was
originally managed by Marcien, but by the time of this case management
responsibilities had been assumed by Leon Roy, son of Marcien and Mary
Anne. Paula Roy, wife of Leon, was responsible for running the park
office, bookkeeping and answering the telephone. The Roys all lived on the
park premises.
The park consists of sixty-six mobile home lots. Some of the mobile
homes are owned by individual lessees who pay defendants a monthly lot
rental; others are owned by defendants, in which case the rent is higher
than it would be for the lot alone. For example, lot rent typically runs
about $200-230 per month, whereas rent for a lot and mobile home is two to
three times that amount.
Plaintiff purchased her mobile home, which was located on lot 35 in
the park, from Justin Schwartz in February 1997 after several unsuccessful
attempts to contact defendants in order to determine what she needed to do
to obtain a lease. Plaintiff and her three-year-old daughter moved into
the mobile home that month. She called defendants and left voice messages
with them on a daily basis; she also sent them letters and mailed them lot
rent checks for February and March 1997. The checks were not cashed, and
defendants never responded to the calls and the letters. Plaintiff spent
$3800 on improvements to the heating, flooring and wiring of the mobile
home.
Soon after sending her third letter to defendants in March 1997,
plaintiff returned home from work and discovered that someone had
systematically smashed out all thirteen glass windows in her mobile home.
One week later, plaintiff approached Marcien Roy in the park, and he told
her he wanted her out of the park and offered her $500 for her mobile
home. Shortly thereafter, plaintiff
returned home from work to discover she had no electricity. She called an
electrician, who determined that the underground electrical wires to her
mobile home had been cut and covered between the home and the service
meter. To restore service, plaintiff and several friends spent a day
hand-digging a trench approximately two feet deep and sixty feet long so
that new wires could be installed the next day. Leon Roy backfilled the
trench with a backhoe before the wires could be run. Plaintiff had to
redig the trench again by hand. By the time the new wiring was installed,
she had been without power for about a week. Upon returning to the mobile
home with her daughter after power was restored, she "felt terrified" and
"under a lot of stress."
Defendants Marcien and Leon Roy denied responsibility for the
vandalism to plaintiff's mobile home, although Leon did admit to filling
in plaintiff's hand-dug ditch because "it was a dangerous thing."
Marcien, Leon, and Paula testified that plaintiff was a trespasser and had
no rights as a resident because she and the party she bought the mobile
home from had not followed the required procedures.
Virtually all of the rest of plaintiff's evidence dealt with other
mobile home owners who resided at one time in the park. The most
important of this evidence involved an earlier similar suit brought in
1986 by Mark Wright and the State of Vermont against Marcien and Mary Anne
Roy. In that suit plaintiffs alleged defendants had instituted an illegal
policy requiring that any tenant who wished to sell a home in the park
sell to defendants and prohibiting any sale to others unless the home was
removed from the park. Plaintiffs also alleged that defendants had
vandalized plaintiff Wright and his mobile home when he tried to sell it
to a third party.
The court found that the plaintiff's allegations were true and that
the Roys had initiated the plan to acquire homes in the park because they
could charge substantially higher rents for a lot and
mobile home than they could for a lot alone, and would realize larger
profits from their park, especially if they were able to drive down the
capital expenses associated with this enterprise - namely, the purchase
price of the mobile homes. The court found that in June 1986, the Roys
sent the park residents a notice declaring their policy to require all
mobile homes to be moved out of the park upon resale. The Roys also
required each resident who sold a mobile home to pay the Roys a $200
brokerage fee whether or not the Roys assisted in the sale of the mobile
home. The court found that the Roys would refuse to accept willing
purchasers when a park resident sought to sell a mobile home to a third
party.
The court found that the Roys used illegal self-help eviction measures
against Mr. Wright. Specifically, the court found that in May 1986, Mr.
Wright wanted to sell his mobile home and move in with his parents in
order to regain a solid financial footing. Wright had a willing purchaser
who offered $12,000, but the Roys refused to approve the sale and said no
prospective purchasers would be approved. In September of that year,
Wright told the Roys he would withhold his lot rent until allowed to sell
his mobile home. Later that fall, Wright took a roommate to share
expenses. In December, the roommate moved out after the tires on his and
Wright's cars were slashed and the cars were spray painted. The
television cable was cut, and snow was plowed into the driveway, blocking
in the cars. The court found by a preponderance of the evidence that these
acts were performed by Leon Roy.
The court found that defendants had violated the Vermont Mobile Home
Park Act, 10 V.S.A. §§ 6201-6266 (the Act) in four respects.
Specifically, it found illegal the policy of requiring tenants who wished
to leave the park to remove the mobile home or sell it to defendants. It
found illegal the rejection of prospective purchasers "for reasons that
theretofore had not been prohibitions in the
terms of the lease." The court also found two violations of the Vermont
Consumer Fraud Act, 9 V.S.A. §§ 2451-2480g. Specifically, it found that
defendants violated the act in "the strong-arm tactics used in an apparent
attempt to persuade Mr. Wright to abandon his tenancy in the park."
As part of its relief, the court enjoined the Roys from "unreasonably
refusing entrance [to the park] to purchasers or prospective purchasers"
and from refusing entry to any purchaser who "qualif[ies] under uniformly
enforced, written, reasonable terms of the park lease." The court also
awarded damages and attorney's fees for the State and Mr. Wright.
At the time of the Wright suit, the park contained sixty-six lots of
which sixty-five contained a mobile home. Residents of the park owned
fifty-seven of these mobile homes, and the Roys owned just eight. By the
time of this trial in January 1999, and despite the judgment in the Wright
case, the Roys owned approximately thirty of sixty-three mobile homes in
the park. From 1993 until 1997, no homes were sold to new park residents.
Most of the rest of plaintiff's evidence involved incidents close in
time to the events involving plaintiff. Ken Scott testified that he
purchased the mobile home on the lot next to plaintiff's, lot 34, in
February 1997. He used his $5000 savings to buy the mobile home. Prior to
doing so, he had his real estate agent send defendants a certified letter
asking to be qualified as a park resident. Defendants orally refused
without stating any reason and told Scott the park did not have a standard
written lease. Scott moved in and began sending rent payments to
defendants. He was later confronted by Leon Roy, who advised him that he
would not be able to stay in the park. Soon after this encounter, someone
removed the drain plug from Scott's kerosene tank causing a fuel spill and
a costly clean up by a state environmental team. Someone also threw rocks
through his windows and cut off his power. Scott eventually left the park
due to the vandalism and associated stress.
Although he was offered $7000 for his mobile home, he could not sell it
because Leon Roy refused all purchasers. A realtor used by Scott
testified that she had sent defendants a certified letter on behalf of two
prospective purchasers of the Scott mobile home, but that she had received
no response from defendants with respect to either.
Tracey Schwartz and Justin Schwartz testified that the mobile home
involved in the instant appeal, located on lot 35, was sold to plaintiff
by Justin Schwartz in February 1997. He purchased the mobile home from
his aunt, Tracey Schwartz in 1996; Tracey Schwartz had lived in the mobile
home on lot 35 from 1982 to 1996. She tried to sell the mobile home once
before. She testified that her attorney had sent defendants a letter and
received no response. Later, defendants declined her prospective
purchaser without a reason: they merely stated that the purchaser was
declined and that "they knew the reason." Tracey eventually sold the
mobile home to Justin without notifying defendants.
Before moving into the mobile home, Justin Schwartz repeatedly
attempted to call defendants to obtain a lease. In December of 1996,
someone threw a rock through his front door. Schwartz also testified that
he had arranged to have cable service installed at the mobile home. When
the company failed to come, he called them, and they told him that
defendants had said not to install the cable because Schwartz was not
going to be there long. In late December or early January, Schwartz
noticed that there was a bullet hole in his kerosene tank that caused the
fuel to leak out onto the ground. After this was repaired, someone poured
water into his fuel tank, and the fuel lines froze. Finally, Schwartz
decided to sell the mobile home and move out. He repeatedly tried to
contact defendants in an effort to follow whatever procedures were
required to sell the mobile home, but defendants never responded.
Joe Candal testified that he had been a park resident for seven and a
half years, residing on lot 29. He eventually decided to sell his mobile
home, and sent registered letters to defendants to notify them on each
occasion that he had a prospective purchaser. He had an offer of $11,000
cash from a woman from Massachusetts who had money from a divorce
settlement and was looking to buy a home in Vermont. She, along with
several other prospective purchasers, was refused by defendants, and
eventually he had to sell the mobile home for only $4000.
Dolores Goodell testified that she had been a park resident for
twenty-two years, and that when she approached an area realtor to sell her
mobile home, the realtor laughed at her when she revealed where it was.
She decided to sell the home herself, and she and her daughter put out a
sign and listed the home in a circular. When she first moved into the
park, she had a lease, but it ran out and was not renewed. When she put
her mobile home up for sale in January 1998, she tried to get a copy of
the lease from defendants, but they never sent her one until she called the
Attorney General's Office. After receiving the lease, Goodell sent
defendants several certified letters over the next few months to notify
them of prospective purchasers. She testified that in each case she had to
wait thirty days for a response, and each applicant was denied. This
happened four times, until, in mid June, defendants finally accepted one
of the prospective purchasers. Originally, she was asking $5000 for her
mobile home, and she had purchasers willing to pay that amount, but she
ended up selling it for $2000.
In April 1997, plaintiff filed this action in Bennington Superior
Court for damages and injunctive relief. Plaintiff alleged that
defendants broke her windows, cut her electric line and refilled her
trench in an effort to illegally evict her, and she sought relief under the
Vermont Mobile Home Park Act and on theories of equitable estoppel and
intentional infliction of emotional distress.
On April 23, 1997, based on the consent of the parties, the court issued a
temporary order prohibiting defendants from engaging in any further
self-help eviction measures pending resolution of the suit, and no further
acts of vandalism occurred.
The parties skirmished over the admissibility of the facts and order
in the Wright case and the testimony of other mobile home owners as
described above. As discussed in detail below, the court denied
defendants' motion to exclude the evidence, finding it admissible to
identify defendants as those responsible for the acts of vandalism and to
show a continuing plan and motive behind their conduct.
Defendants argued that plaintiff was not protected by the Act because
she had never been accepted as a tenant. The court rejected this
argument, ruling that plaintiff was a resident of the park and was
entitled to the protections of the Act as a matter of law, and instructed
the jury accordingly. The court dismissed defendants' counterclaims for
foreclosure of lien, ejectment, and trespass, dismissed plaintiff's claims
based on equitable estoppel and intentional infliction of emotional
distress, and dismissed plaintiff's claim for injunctive relief as unripe.
The case was then submitted to the jury on special interrogatories, and
the jury returned a verdict for plaintiff. The jury found that Leon Roy
did attempt "to evict plaintiff by force or other self-help means," but
found that Marcien Roy was not liable for the same conduct. In addition,
the jury found that Leon Roy "wilfully caused, directly or indirectly, the
interruption or termination" of plaintiff's utility service, but found that
Marcien Roy did not do the same. The jury awarded plaintiff $10,000
compensatory damages against Leon and the trust. It also found that both
Marcien and Leon Roy "acted recklessly and in wanton disregard of
plaintiff's rights" and awarded $100,000 punitive damages against Leon,
Marcien, and the trust. The jury was precluded from considering
defendants' counterclaim for
slander because it found for plaintiff on the illegal eviction claim.
After judgment on the verdict was entered, defendants moved for
judgment as a matter of law or for a new trial pursuant to V.R.C.P. 50(b)
and 59. Defendants argued that the jury's verdict finding Marcien acted
recklessly and in wanton disregard of plaintiff's rights was at odds with
its finding that Marcien did not "directly or indirectly" cause the
interruption of utilities or otherwise use force or other self-help means
to evict plaintiff. The court agreed with defendants on this issue and
set aside the verdict against Marcien Roy for punitive damages.
Defendants also argued in their motion that the trust was entitled to
judgment as a matter of law. The court denied this part of defendants'
motion, ruling that as a matter of law Leon Roy was acting in the scope of
his employment and for the benefit of the trust when he carried out the
illegal eviction acts because "the only reasonable inference" from the
evidence was that Leon Roy's actions were "related solely to his position
as a mobile home park manager and the employee/beneficiary of the trust.
His self-help eviction efforts directed at plaintiff could only have been
motivated by the overall financial goals of the family and the family
trust." The court then upheld the punitive damage award against the
trust, again ruled that plaintiff was a resident of the park and entitled
to the Act's protections, declined to order a new trial due to the prior
bad acts testimony, and upheld the jury awards as "plainly within the
jury's discretion, and not clearly excessive." The court also ruled that
defendants were not entitled to a new trial because the court had excluded
threats against defendants made by plaintiff's ex-boyfriend, and that
defendants' slander claim failed because the jury verdict demonstrated
that the statements alleged to have been made by plaintiff were true.
I.
On appeal, defendants reassert the same arguments made in their
post-trial motion. We begin
with the claims that one or more defendants should have prevailed as a
matter of law. There are two such claims: (1) as a matter of law,
plaintiff was not entitled to the protections of the Mobile Home Park Act;
and (2) the Marcien and Mary Anne Roy Trust is not liable because plaintiff
failed to state a claim against it.
A.
The first argument relates to plaintiff's complaint count that
defendants violated the Act because they did not provide adequate and
reliable utility services to her as required by 10 V.S.A. § 6262, the only
count that went to the jury. After discussion among the parties and the
court, this count was charged as an allegation that defendants attempted
to evict plaintiff "by force or . . . other self-help means." Id. §
6237(a)(1). The provision prohibits such conduct by a park owner against a
"mobile home resident." Id. § 6237(a); see also id. § 6237(d) (limiting
applicability of § 6237 to mobile home park owners).
Defendants argue that plaintiff was not entitled to the protection of
the prohibition on self-help eviction because she was not a resident. She
was not a resident, they argue, because the prior owner failed to comply
with § 6240(a) and provide defendants with the name of plaintiff as the
prospective purchaser before the sale occurred so they could determine
whether to accept her as a tenant.
The Act defines the term "mobile home park resident" as "an individual
. . . who occupies a mobile home on a permanent or temporary basis in a
mobile home park." Id. § 6201(6). We can find no support for defendants'
position in this definition. The definition turns on the fact of
occupancy rather than its legality. Even if plaintiff were unlawfully
occupying her mobile home and lot, an issue that was hotly disputed
between the parties, there is nothing in the words of the
definition to suggest that she did not have the protection of the Act.
Indeed, the broad coverage of temporary and permanent occupancies suggests
that the occupant need not have a particular status to be a resident for
purposes of the Act. Normally, we must apply a statute in accordance with
the plain meaning of its language. See McMurphy v. State, 171 Vt. 9, 12,
757 A.2d 1043, 1046 (2000).
As plaintiff argues, the Legislature had a model to accomplish exactly
and explicitly what defendants attempt to infer from the language of the
Act. The Legislature defined a "tenant" under the Residential Rental
Agreements Act, 9 V.S.A. § 4451-4469, as "a person entitled under a rental
agreement to occupy a residential dwelling unit," id. § 4451(9), and then
worded the comparable provisions prohibiting self-help evictions as
flowing to the "tenant," id. § 4463(a). Other states have defined mobile
home park "resident" similar to the Vermont definition of "tenant,"
specifically providing that the resident must be present under a rental
agreement. See N.M. Stat. Ann. § 47-10-2(H) (1978) (1995 Repl.) (resident
is a person present "under a rental agreement"); 68 Pa. Cons. Stat. Ann. §
398.2 (1994) (resident is a person who "leases or rents space" in a mobile
home park). The comparison of the Vermont language with these
alternatives reinforces the inference that the Legislature did not require
that a mobile home park resident have a lease with the park owner in order
to be protected by the Act.
Finally, under the circumstances of this case, the policy
considerations favor plaintiff's position. Defendants argue that the
Legislature intended that persons in plaintiff's position have no rights
so it is permissible for the park owner to cut off heat and power without
warning, or break every window in the home, as a means to evict the
tenant. This extreme position ignores the state's interest in the
peaceful resolution of legal disputes without force or violence. We
conclude that one of the purposes of a broad definition of "resident" was
to ensure that disputes between mobile home
park owners and occupants of homes would not be resolved by the methods
defendants employed here.
B.
The second argument relates to the trust. The trust argues that it
can not be held liable because plaintiff failed to cover the trust in its
complaint.
Plaintiff's complaint and amended complaint named as defendants
Marcien, Mary Anne and Leon Roy. Defendants answered and raised
counterclaims by Marcien Roy, acting as trustee on behalf of the trust.
This was apparently the first notice that the park was owned by the trust,
rather than by Marcien and Mary Anne Roy. Plaintiff responded by making a
motion to amend the complaint to add the trust as a defendant. She
attached to the motion, as the proposed amended complaint, a new first
page which changed the caption to add the trust as a defendant and changed
paragraph three in the complaint to state "Defendants Marcien Roy and Mary
Anne Roy are trustees of the Marcien and Mary Anne Roy Trust, which owns
the Royal Pine Villa Mobile Home Park." Apparently, she requested the
single page amendment because the prayers for relief were generally stated
as against "defendants" without differentiating among them. The court
allowed the amendment by an order dated April 6, 1998. Plaintiff filed no
further document in response to that order.
On the first day of trial, January 25, 1999, defendants asked the
court to dismiss the trust as a party defendant on the ground that no
separate amended complaint had been filed once the court granted plaintiff
leave to amend. The trial court refused to do so. On appeal, defendants
argue that a motion is not itself a pleading, that once a motion to amend
a complaint is granted an entire new amended complaint must be filed, and
that because plaintiff did not do so the court erred in refusing
to dismiss the trust as a defendant.
The exact nature of the trust's claim of error is unclear. It has not
claimed that there was no jurisdiction over it because no process was
served on it pursuant to V.R.C.P. 4, apparently because it recognizes that
prior to the amendment it had asserted counterclaims against plaintiff
without formally entering the case as a party. Instead, it argues that a
motion to amend must be followed by an amended complaint, but acknowledges
such a filing may be unnecessary if the moving party attaches the proposed
amendment to the complaint to the motion. Thus, its claim of error
apparently reduces to an assertion that plaintiff had to attach all pages
of the complaint to her motion, or had to serve separately the entire
complaint, even though none of the unattached and unserved pages were
amended. While we agree that the court could have insisted that plaintiff
file and serve a full amended complaint, or given the trust more time to
answer, see Carter v. Church, 791 F. Supp. 297, 298 (M.D. Ga. 1992), the
trust seeks reversal of the judgment based on a technical rule that
elevates form over substance. See North Georgia Elec. Membership Corp. v.
City of Calhoun, 989 F.2d 429, 432 (11th Cir. 1993). Such a rule would be
inconsistent with our policy that amendments to the pleadings are to be
freely given where there is no prejudice to the opposing party. See
Desrochers v. Perrault, 148 Vt. 491, 493, 535 A.2d 334, 336 (1987);
Reporter's Notes to V.R.C.P. 15. We reject the trust's claim.
II.
We turn now to three arguments, which if accepted, would require a new
trial on plaintiff's claim or on one of the counterclaims: (1) the court
erred in ruling that, as a matter of law, the trust was responsible for
the conduct of Leon Roy; (2) the court erred in admitting evidence of prior
bad acts; and (3) the court erred in excluding evidence of threats made to
the Roys by plaintiff's agent.
A.
The first ruling occurred following the close of evidence in response
to defendants' argument that the jury would have to find agency and
vicarious responsibility to hold the trust liable for the acts of either
Leon or Marcien Roy. The court ruled that agency was present as a matter
of law. Defendants further preserved their position by an objection
following the charge to the jury.
The nucleus of defendants' argument is that plaintiff had to prove
that Leon Roy's acts were taken within the scope of his employment,
Poplaski v. Lamphere, 152 Vt. 251, 257, 565 A.2d 1326, 1330 (1989), and
that question should have been put to the jury. Defendants particularly
rely upon our recent explanation of this element in Brueckner v. Norwich
University, 169 Vt. 118, 123, 730 A.2d 1086, 1091 (1999):
To be within the scope of employment, conduct must be of
the same general nature as, or incidental to, the authorized
conduct. See Restatement (Second) of Agency § 229(l)
(1958). Conduct of the servant falls within the scope of
employment if: (a) it is of the kind the servant is employed
to perform; (b) it occurs substantially within the
authorized time and space limits; (c) it is actuated, at
least in part, by a purpose to serve the master; and (d) in
a case in which the force is intentionally used by the
servant against another, it is not unexpectable by the
master. See id. § 228(1). Conduct of a servant is not
within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time and
space limits, or too little actuated by a purpose to serve
the master. See id. § 228(2).
Defendants argue that at least as to two of the elements - whether the
conduct of Leon Roy was "the kind" he was employed to perform, and whether
the conduct was "unexpectable" by the master - were disputed.
The court granted judgment to plaintiff as a matter of law on the
issue of the trust's vicarious responsibility for the acts of Leon Roy.
In reaching this conclusion, it was required to find that
"there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue." V.R.C.P. 50(a)(1). The court relied
upon the undisputed evidence of Leon Roy's authority and past conduct.
According to his testimony, Leon Roy was the manager of the park
responsible for all phases of its policy and management. He made all
decisions about how the park ran. He was responsible for all decisions on
applications to rent a lot in the park. The only other employee was his
wife, Paula Roy, who did the bookkeeping and office work. Marcien Roy was
retired but did "a little work around the park for Leon."
The court found that there was no evidence that Leon Roy's actions
were motivated by personal animus to plaintiff and concluded:
Here, the only reasonable inference from the evidence
admitted and the jury's special findings is that Leon Roy's
actions were related solely to his position as a mobile home
park manager and the employee/beneficiary of the Trust. His
self-help eviction efforts directed at plaintiff could only
have been motivated by the overall financial goals of the
family and the family trust.
We agree with the superior court's analysis.
While there are some factual disputes in this case, there are none
bearing on the scope of Leon Roy's authority. In general, we follow the
modern view, "that is, the inquiry turns not on whether the act done was
authorized or was in violation of the employer's position, but rather
whether the acts can properly be seen as intending to advance the
employer's interests." McHugh v. Univ. of Vt., 758 F. Supp. 945, 951 (D.
Vt.), aff'd, 966 F.2d 67 (2d Cir. 1991). Thus, there is no requirement
that the master specifically authorize the precise action the servant took.
See Pelletier v. Bilbiles, 227 A.2d 251, 253 (Conn. 1967) (responsibility
of store employee to ensure customers did not misbehave in the store made
store owner vicariously liable when employee beat a customer
to stop him from misbehaving; "fact that the specific method a servant
employs to accomplish his master's orders is not authorized does not
relieve the master from liability"). Such a requirement would mean that
there could rarely be vicarious liability for intentional torts because the
master would not specifically authorize the commission of an intentional
tort. The law is to the contrary. See Restatement (Second) of Agency §§
230, 231 (1958); see also Tarman v. Southard, 205 F.2d 705, 706 (D.C. Cir.
1953) (jury could find taxicab company vicariously liable where taxi driver
drove his cab over plaintiff's leg as a result of a dispute over the fare);
Sayers v. Boyles, 190 So. 2d 707, 709 (Ala. 1966) (landlord could be found
responsible for action of rent-collection agent who assaulted tenant when
he did not pay on time); Hechinger Co. v. Johnson, 761 A.2d 15, 25 (D.C.
2000) (where supervisory staff person of store assaulted plaintiff-customer
in the course of a discussion over scraps of wood given to plaintiff by
other customers, store could be held vicariously liable); Gonpere Corp. v.
Rebull, 440 So. 2d 1307, 1308 (Fla. Dist. Ct. App. 1983) (jury could find
apartment owner vicariously liable where apartment manager shot tenant
during discussion of tenant's eviction notice); Hinson v. Morris, 298 S.W. 254, 256 (Mo. Ct. App. 1927) (apartment owner held vicariously liable
where apartment manager assaulted plaintiff when he could not pay for
damage to personal property in his apartment); De Wald v. Seidenburg, 79 N.E.2d 430, 432 (N.Y. 1948) (apartment building owner could be held liable
where superintendent pushed tenant down a flight of stairs in argument
over breach of building rules by tenant's maid).
In this case, the trust has consistently taken the position that
plaintiff was a trespasser, and, therefore, it could use self-help means
to evict her. There is no dispute that Leon Roy's responsibility as park
manager included the removal of trespassers from the park. See Ploof v.
Putnam, 83 Vt. 252, 257, 75 A. 277, 278 (1910) (island caretaker who was
responsible to keep
trespassers off the island could use such force as is necessary to
accomplish the purpose). The trustees were on notice that Leon used
surreptitious vandalism and utility disconnection as a means of self-help
eviction. They were parties to the 1986 action in which the court found
Leon used these methods to evict Mark Wright and awarded $10,234 in
compensatory and punitive damages against them. Yet, they made no change
in their methods of operation after that judgment. Finally, there is no
evidence that Leon acted out of personal animus against plaintiff, rather
than for the business interests of the park. See id. (island owner is
liable if caretaker would not allow boat to land in a storm as long as
caretaker did not act for his own private purpose). It was undisputed that
Leon Roy had never met, and had never communicated with, plaintiff until
the trial of this case.
Where it is "clearly indicated" that the servant was acting within the
scope of the employment, the court may hold the master vicariously
responsible as a matter of law. Restatement (Second) of Agency at § 228
cmt. d; see also Ploof, 83 Vt. at 259, 75 A. at 279 (although scope of
employment is normally a question of fact, it can be decided as a matter of
law where "facts and inferences to be drawn therefrom are not in
dispute"). It is hard to imagine a case where authorization is more
clearly indicated. The superior court properly found as a matter of law
that Leon's actions were taken to benefit the park and the trust, as its
owner; the self-help methods Leon employed were of the kind he was
employed to perform; and Leon's intentional force was "not unexpectable by
the master." There is no error in holding the trust vicariously
responsible for Leon's acts.
B.
Defendants' second ground for its motion for a new trial was the
admission of the opinion and judgment in Wright v. Roy, the testimony of
the circumstances of that case, and the testimony
of other mobile home owners describing events involving their sale,
purchase or occupancy. Defendants filed a motion in limine seeking to
exclude this evidence on the ground that it was inadmissible under V.R.E.
403 and 404. Plaintiff argued in response that the evidence was not
inadmissible under Rule 404, because it was not offered to prove
defendants' character, but rather to show motive, plan and the identity of
the person who vandalized her mobile home. She argued that the evidence
was not inadmissible under Rule 403 because the probative value was high,
and it outweighed any prejudice to defendants.
The court denied the motion in limine, essentially for the reasons
argued by plaintiff. Defendants renewed their objection to this evidence
prior to trial and were granted a continuing objection to evidence of this
sort by the trial court. They also renewed their arguments in their post-
verdict motion for a new trial. The court rejected this ground for the
motion holding that the evidence was admissible "to identify defendants as
the perpetrators of the acts against plaintiff and to show a continuing
plan and motive behind defendants' conduct towards plaintiff."
Defendants renew their claim that the admission of the evidence
violated V.R.E. 404(b).(FN1) They argue that this evidence was not (1)
probative of identity because the acts are not so distinct as to be
signature-like; (2) that the evidence was not probative to show motive
because there is no connection between the conduct in the case at bar and
the prior conduct; and (3) that the evidence is not probative of a
continuing plan because the prior acts are too remote in time and too
dissimilar. Defendants argue that because admission of the evidence was
not justifiable under these exceptions
to Rule 404's general prohibition against character evidence, the only
reason the evidence was offered and admitted was to show the defendants'
bad character and to prove they acted in conformity therewith, in
violation of the rule. Finally, they argue that even if the evidence was
admissible under Rule 404(b), it failed as a matter of law to pass the
balancing test imposed by V.R.E. 403.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
We begin by emphasizing that trial courts have wide discretion in ruling on
the admissibility of evidence. Derosia v. Liberty Mut. Ins. Co., 155 Vt.
178, 189, 583 A.2d 881, 887 (1990). Evidentiary rulings which lie in the
discretion of the trial court will not be reversed absent a showing that
the court abused its discretion by either totally withholding that
discretion or by exercising it in a clearly untenable or unreasonable
fashion. State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988).
Plaintiff's primary ground for admission of the disputed evidence was
to show a plan, a permissible ground specifically authorized by Rule
404(b). We have decided a number of Rule 404(b) plan cases, the first and
most detailed of which is State v. Catsam, 148 Vt. 366, 534 A.2d 184
(1987), a child sexual assault criminal case. In Catsam, we affirmed the
admission of evidence of defendant's prior sexual assaults on the victim,
which occurred on six occasions over the two years prior to the charged
incident. Our holding was:
Evidence that the defendant previously molested the victim, and
threatened her with harm if she were to reveal the incident,
gives rise to the legitimate inference that because of the
manner in which the prior sexual acts were perpetrated, the
prior acts and the charged crime were part of a concerted
scheme or plan of molestation.
Id. at 381, 534 A.2d at 194. In announcing this holding, we acknowledged
that "admitting evidence of prior sexual acts to prove a plan comes
perilously close to the prohibited practice of admitting evidence of the
defendant's character to prove he acted in conformity therewith in
committing the crime charged." Id. Thus we emphasized,
[i]n order to ensure the principled application of the
rule, trial courts must find, at a minimum, a clear
inference of the existence of a plan from the prior acts.
At least two factors are crucial considerations in making
this determination: similarity between the prior acts and the
crime charged and proximity in time. . . . Other factors may
also be considered, but the controlling consideration is
whether the evidence tends to establish a scheme or plan of
sexual molestation.
Id. at 382, 534 A.2d at 194. Other cases have reiterated the crucial
considerations of similarity and proximity in time. See State v.
LaBounty, 168 Vt. 129, 134, 716 A.2d 1, 5 (1998); State v. Winter, 162 Vt.
388, 396-98, 648 A.2d 624, 629 (1994); State v. Hurley, 150 Vt. 165, 169,
552 A.2d 382, 385 (1988). We explained in Winter, however, that there are
no "hard-and-fast time limits" and that the "precise amount of elapsed
time is less important than the relation between the passage of time and
the inference that there is an overall plan to defendant's actions." 162
Vt. at 397, 648 A.2d at 629. Thus, we noted that in child sexual assault
cases we would authorize the admission of "much earlier assaults on the
victim when the evidence also shows such assaults have continued right up
to the charged event." Id.
Defendants argue that the evidence of the events and outcome in the
Wright case are inadmissible to show a plan because they occurred over a
decade before the events that gave rise to
this litigation and are not similar to those events. For two reasons,
we disagree.
First, we believe the evidence met the Catsam and Winter standards
such that its admission fell well within the discretion of the trial
court. Plaintiff alleged that defendants had a plan to gain ownership of
all mobile homes in the park even by unlawful methods. The court's 1987
conclusions and order in the Wright case found the plan that plaintiff
alleged existed. Specifically, it found that defendants' policy of
requiring owners to sell only to defendants was illegal, that defendants'
refusal to approve sales of mobile homes to third parties based on reasons
not provided in the park leases was illegal, and that defendants used
illegal "strong-arm tactics" to persuade Mr. Wright to abandon his tenancy
in the park. On the basis of these conclusions, the court issued
injunctions against the first two practices and awarded damages for the
third. Significantly, the injunctions were issued in favor of the State
of Vermont, a plaintiff in the Wright case, so they applied to any
prospective purchaser, including plaintiff in this case.
If plaintiff failed to show that anything occurred in pursuit of the
plan between 1987 and 1997, defendants might have been in a position to
complain about the lack of proximity in time. In fact, plaintiff showed
that despite the injunction, the percentage of mobile homes in the park
owned by defendants rose greatly from 13% in 1987 to 48% in 1999. She
also showed that no home was sold to a new park resident between 1993 and
1997.
Finally, there was testimony that the plan, created in 1986, continued
right up to the present. One of plaintiff's witnesses, Joe Candal,
testified that he tried to sell his home for a year, proposing many
purchasers to defendants, but they declined all of them. In frustration,
Mr. Candal offered to sell the home to Leon Roy, who said he might have
been interested a few months ago, but could not purchase it at that time
because "[t]he state's watching us pretty good."
As we said in Winter, the important consideration is the relation
between the passage of time and the inference that there is "an overall
plan to the defendant's actions." Id. The inference was strong that
defendants' plan to gain ownership of all the mobile homes in their park
continued from 1986 right up to the present.
We have a similar reaction to defendants' claim that the prior bad
acts were not sufficiently similar to the conduct involving plaintiff. On
this point, defendants are apparently challenging not only the Wright case
evidence but also the evidence of events involving other tenants which
occurred around the time of the vandalism of plaintiff's home. Defendants
argue that none of these events are sufficiently similar because only
plaintiff claimed that her windows were broken and her electric wire cut.
The record does not support defendants' argument. Mr. Scott testified
that his windows were broken and his electric power was disconnected. In
any event, defendants are quibbling over minor differences and ignoring
the essential similarity in the experiences of the tenants and those who
bought mobile homes in the park. As the court concluded in the Wright
decision, defendants engaged in "strong-arm tactics" to prevent an owner
from selling to a purchaser other than defendants. Whether those
strong-arm tactics involved vandalizing vehicles, cutting cable TV lines,
cutting power lines, disconnecting power lines, removing a kerosene tank's
drain plug, shooting a hole in a kerosene tank, throwing rocks through
windows or throwing a rock through a front door is insignificant. They
are all anonymous acts of vandalism intended to interfere with the use and
enjoyment of the mobile home premises and usually to scare and intimidate
the mobile home occupant. In most cases, they were accompanied by a
refusal to approve prospective purchasers and/or a refusal to recognize,
or even respond to, a purchaser without a prior authorization. The
similarities overwhelm any differences.
There is a second, more general, reason why the evidence was
admissible under the plan exception in this case. All of our Rule 404(b)
plan cases have involved an "unlinked plan," that is, a series of
proximate, similar crimes which establish a plan to commit the series of
crimes. See E. Imwinkelried, Using a Contextual Construction to Resolve
the Dispute Over the Meaning of the Term "Plan" in Federal Rule of
Evidence 404(b), 43 U. Kan. L. Rev. 1005, 1011 (1995). This, however, is
a "linked acts" plan, also called a true plan, where plaintiff has shown a
grand design to gain ownership of the mobile homes in the park and each
act of misconduct "is a means to the end of achieving the overarching end
or objective." Id. at 1015; see also 1 J. Strong, McCormick on Evidence §
190, at 661 (5th ed. 1999) (under plan exception "crime should be an
integral part of an overarching plan explicitly conceived and executed by
the defendant"). In true plan cases, an "act can be probative of a true
plan even when it is dissimilar to the charged" acts and "the uncharged and
charged . . . [acts] need not be proximate in time." 1 E. Imwinkelried,
Uncharged Misconduct Evidence § 3.22, at 118 (rev. ed. 1999). Thus, while
we believe that the trial court could consider similarity and proximity in
determining the admissibility of the evidence, there are no hard and fast
lines as defendants suggest.
The evidence was also admissible to show identity, a critical issue in
this case where plaintiff had no direct evidence that Leon Roy committed
the acts of vandalism. Particularly relevant to plaintiff's case was the
evidence from the Wright case that the acts of vandalism were anonymous,
but the court found by a preponderance of the evidence that Leon Roy
committed those acts. Also relevant was the fact that unapproved
occupants of homes suffered acts of vandalism, suggesting that the
vandalism was being used as a method of eviction. Indeed, that was exactly
the court's
conclusion in the Wright case.
Defendants argue, however, that in order to use prior bad act evidence
to prove identity, the acts must be so distinctive as to amount to a
signature. Here, they argue, the acts of vandalism perpetrated on
plaintiff were unique, and none of the witnesses were trying to force
defendants to give him or her a lease. Thus, they argue the evidence was
inadmissible to prove identity.
Defendants' argument is based on State v. Bruyette, 158 Vt. 21, 604 A.2d 1270 (1992), a sexual assault case in which the victim was unable to
identify the perpetrator because she was blindfolded. The court admitted
the testimony of the defendant's former girlfriend to describe certain
sexual practices he liked to engage in, certain statements he frequently
made during sex, and how he liked to use cocaine during sex. The
practices and statements were similar to those that occurred with the
victim, and the perpetrator had used cocaine during the sexual assault.
We upheld the admission of the evidence, noting that the pattern and
characteristics of the prior act "must be so distinctive, in effect, to
constitute the defendant's signature," id. at 27, 604 A.2d at 1273, and
further described the standard as follows:
Although the prior acts of the accused and the charged
acts do not have to be identical, they must possess common
features that make it highly likely that the unknown
perpetrator and the accused are the same person. Whereas a
few common features that are unique may be sufficient, a
larger number of them, less remarkable, but taken together,
may also have significant probative value.
Id. at 28, 604 A.2d at 1273. For two reasons, evidence of the other acts
in this case did not run afoul of the Bruyette standard.
First, as described above, plaintiff showed an overall plan that
allowed admission of much of the evidence. The existence of the plan, and
the prior finding that Leon Roy vandalized the home
of Mark Wright, was relevant to show that Leon Roy was responsible for
vandalizing plaintiff's mobile home. See J. Strong, supra § 190, at 661
(plan is relevant to show "the doing of the . . . act, the identity of the
actor, or his intention"). Plaintiff did not have to meet the strict
standard of Bruyette to admit prior bad act evidence to show identity in
this case.
Second, we conclude that plaintiff did meet the Bruyette standard.
Again, defendants quibble over minor differences between the vandalism
perpetrated on plaintiff and that perpetrated on others. Defendants'
"signature" was: they refused to deal openly with tenants' attempts to sell
their homes to third parties; they refused to approve such sales; they
refused any contact with purchasers of the homes; and they surreptitiously
vandalized the homes of purchasers who attempted to occupy the homes in
order to induce them to leave. Since defendants remained the owners and
managers of the home throughout the period covered by the evidence, it was
highly likely that the same person who engaged in this conduct in 1986 was
the person who vandalized the homes of plaintiff and the other witnesses
in 1996 and 1997. The Bruyette standard was met.
Much of the evidence was also admissible to prove motive, another
ground specifically authorized by Rule 404(b). The classic case of using
prior bad act evidence to show motive is State v. Wheel, 155 Vt. 587, 587 A.2d 933 (1990), in which the defendant was prosecuted for perjury for
lying at an inquest to cover up her submission of false pay vouchers for
days in which she did not work as an assistant judge. The court admitted
evidence that the defendant did not work on days for which she claimed
pay, but altered court records to make it appear she was present. We
affirmed on the basis that fear of disclosure of the misconduct in
submission of the vouchers was the motive for the perjurious testimony.
Id. at 604, 587 A.2d at 943-44.
As with other grounds for admission of bad act evidence, it is
important that the exception
not become a pretext for admission of character evidence. Thus in State v.
Winter, a rape case, we held that evidence that the defendant committed a
rape on another woman was not admissible based on the logic that the
defendant's conduct was motivated by sexual gratification in the other rape
so he must have had the same motivation for the rape for which he was
being tried. 162 Vt. at 394-95, 648 A.2d at 628. We held that this logic
was "no more than an impermissible propensity analysis," id. at 395, 648 A.2d at 628, and also rejected it because it admitted "the uncharged
misconduct evidence as bearing on an issue not contested." Id.
Here, plaintiff was in the position of explaining conduct that
appeared bizarre. Without the historical context, and the evidence of
defendants' conduct with other tenants, their actions in refusing to
return telephone calls, answer letters or cash rent checks from plaintiff
were inexplicable. Nor could the jury be expected to understand why
defendants might vandalize plaintiff's mobile home. Only by learning
defendants' motives could the jury understand why they would engage in the
conduct alleged by plaintiff. See State v. Recor, 150 Vt. 40, 43-44, 549 A.2d 1382, 1385-86 (1988) (in child sexual assault case, after defense
brought out in cross-examination that victim hated defendant, prosecution
allowed to show in redirect that hatred was motivated by fact that
defendant sexually assaulted victim on an earlier occasion). Admission of
the evidence of the Wright case, and the experience of other tenants,
established defendants' motives without using impermissible propensity
analysis.
There is another ground for admitting the prior bad act evidence.
Plaintiff sought and obtained punitive damages in this case. The evidence
involving the Wright case, as well as the evidence of the experience of
other tenants, was admissible on whether to award punitive damages and on
the amount of any punitive damages. See Devine v. Rand, 38 Vt. 621, 626-27
(1866). As
the United States Supreme Court explained:
Certainly, evidence that a defendant has repeatedly
engaged in prohibited conduct while knowing or suspecting
that it was unlawful would provide relevant support for an
argument that strong medicine is required to cure the
defendant's disrespect for the law. . . . Our holdings that
a recidivist may be punished more severely than a first
offender recognize that repeated misconduct is more
reprehensible that an individual instance of malfeasance.
BMW of North America, Inc. v. Gore, 517 U.S. 559, 576-77 (1996) (citations
omitted); see also Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1249-50
(10th Cir. 2000) (in products liability action, plaintiff could show that
allegedly defective milling machine had injured others as bearing on
punitive damages); Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319,
1352 (Conn. 1997) (same); Webster v. Boyett, 496 S.E.2d 459, 462-63 (Ga.
1998) (in automobile negligence action where defendant was alleged to be
intoxicated, evidence of prior acts of driving while intoxicated are
admissible as bearing on punitive damages); Harris v. Solely, 756 A.2d 499,
507 (Me. 2000) (in tort action against former landlord for intentional
infliction of mental distress, conversion and breach of contract based on
landlord failing to maintain premises and sending agents to break into the
apartment, "prior misconduct by a defendant that is similar to the
misconduct giving rise to liability" is admissible for "the determination
of punitive damages"). The Wright case evidence was particularly relevant
on punitive damages against the trust because it showed that Marcien and
Mary Anne Roy were aware that Leon Roy had vandalized homes in the past as
part of the scheme to gain ownership of the homes in the park. See Weeks
v. Baker & McKenzie, 74 Cal. Rptr. 2d 510, 530-31 (Cal. Ct. App. 1998) (in
sexual harassment case against lawyer and law firm, evidence that lawyer
sexually harassed other employees in the past admissible on punitive
damages since firm took no action to protect plaintiff).
Finally on this point, defendants argue that even if the prior bad act
evidence was admissible under V.R.E. 404(b), it should have been excluded
under V.R.E. 403 because its unfair prejudicial effect substantially
outweighed its probative value. The trial court has broad discretion in
determining whether the unfair prejudicial effect of evidence outweighs its
probative value, and the burden of showing abuse of that discretion is a
heavy one. See Ulm v. Ford Motor Co., 170 Vt. 281, 290, 750 A.2d 981, 989
(2000).
The court exercised its discretion in this case. It found that the
evidence was clearly relevant to show Leon Roy's identity as the person
who vandalized plaintiff's home and cut her electric line, defendants'
motive in refusing to respond to and deal with plaintiff, and the
continuing plan to gain ownership over all homes in the park. It found
that the evidence would not have the primary purpose or effect of
appealing to the emotions of the jurors and, therefore, was not unduly
prejudicial. We add that plaintiff demonstrated a clear need for the
evidence in the absence of any witness who saw the vandalism or the
cutting of the electric line and could identify the perpetrator. See
Winter, 162 Vt. at 400, 648 A.2d at 631 (in sexual assault case in which
State offered evidence that the defendant assaulted another woman four
years earlier, "State's need for the evidence is a major factor in the
balancing process"). Because of the court's findings in the Wright case,
the number of tenants and occupants who had similar experiences, and the
continuing increase in the number of homes owned by defendants, the
likelihood that the prior bad acts occurred was strong. See id. at
400-01, 648 A.2d at 632 (a Rule 403 factor is "how definitely the State has
proved defendant's commission of the uncharged misconduct"). We agree
with the trial court that the probative value of the evidence was high and
the risk of unfair prejudice from it was relatively low. Accordingly, we
affirm its decision to admit the prior bad act evidence.
C.
The third claim in support of defendants' request for a new trial is
the exclusion of evidence of threats left on defendants' answering machine
by plaintiff's ex-boyfriend, who is the father of plaintiff's daughter.
The messages, expressed in aggressive and profane terms, threatened to harm
"Mr. Roy" for harassing and inflicting stress on plaintiff. The
ex-boyfriend lived in South Carolina, and the messages said he would fly
to Vermont to carry out his threats.
Without calling the ex-boyfriend to testify, defendants sought to
introduce the answering machine tapes in support of their counterclaim
that plaintiff intentionally inflicted emotional distress on defendants
through her agent, the ex-boyfriend. The court excluded the tapes on the
ground that there was no evidence that the ex-boyfriend acted as an agent
for plaintiff, and invited defendants' counsel to fill that foundational
gap by testimony from plaintiff or the ex-boyfriend. The court also ruled
that if the tapes were otherwise admissible, it would exclude them under
Rule 403 because their prejudicial effect outweighed their probative
value. Defendants' counsel never followed up to fill the foundational
gap. With no other evidence to support it, the court dismissed the
intentional-infliction-of-emotional-distress counterclaim.
Defendants claim that the court erred in excluding the tapes because
the jury could infer that the ex-boyfriend acted as plaintiff's agent from
the information he conveyed on the tapes. Although the ex-boyfriend never
stated that he was acting for plaintiff, defendants argue that the
information about defendants' alleged responsibility for the vandalism of
plaintiff's mobile home must have come from plaintiff.
The trial court has broad discretion in determining the adequacy of
the foundation for admitting evidence. See State v. Streich, 163 Vt. 331,
344, 658 A.2d 38, 47 (1995). As part of its
discretion the court can require the foundational showing prior to the
admission of the evidence or, alternatively, admit the evidence subject to
the later foundational showing. V.R.E. 104(b). The court appropriately
chose the former alternative in view of the abusive, threatening and
profane nature of the content of the messages.
The court made a ruling that the evidence was irrelevant absent some
showing that the ex-boyfriend was plaintiff's agent. Defendants never
attempted to show agency beyond the content of the tape itself and
plaintiff's testimony that she talked to the ex-boyfriend because he is her
child's father. There was no showing that plaintiff knew of the threats
or authorized them in any way. Again, the court had broad discretion in
making its evidentiary ruling. See State v. Hooper, 151 Vt. 42, 46, 557 A.2d 880, 882 (1988). We think the court acted within that discretion in
excluding the answering machine messages.
III.
A.
Defendants have raised three issues with respect to damages. First,
they argue that the $10,000 compensatory damages award was excessive in
light of the fact that plaintiff could itemize damages of only $418 for
spoiled food and electrician's services.
The court charged the jury, without objection, that they could award
damages for "inconvenience, mental suffering, emotional distress, worry,
anxiety, humiliation, and indignity." The evidence was that plaintiff was
unable to live in the mobile home for a number of days, first because of
the broken windows, and then because of the absence of heat and
electricity. She testified that after the cutting of the electric line,
she "felt terrified," she was afraid of what would happen next, she had
"sleepless nights," and she was "under a lot of stress."
In response to the defendants' motion to set aside the verdict as
excessive, the court ruled that the award was within the jury's
discretion, especially because of the evidence of emotional distress. We
also agree with the court's analysis on this issue.
We recently summarized the law applicable to a challenge to a monetary
verdict on the ground it was excessive:
"In evaluating this claim, we must consider the evidence in
the light most favorable to the damages found by the jury
and uphold the verdict if there was evidence reasonably
supporting it." Winey v. William E. Dailey, Inc., 161 Vt.
129, 144, 636 A.2d 744, 753 (1993) (citation omitted). "To
overturn a jury award, an appellant must demonstrate that
the verdict was entirely excessive . . . ." Turgeon v.
Schneider, 150 Vt. 268, 272, 553 A.2d 548, 551 (1988)
(internal quotations omitted).
In re Estate of Peters, 171 Vt. 381, 393, 765 A.2d 468, 477 (2000). We
also noted that we will not interfere with a jury award where exact
computation is impossible. Id., 765 A.2d at 477-78 (citing Imported Car
Center, Inc. v. Billings, 163 Vt. 76, 82, 653 A.2d 765, 770 (1994)).
Defendants' main claim is that the compensatory damages verdict is
excessive because it is much higher than the amount awarded in other
landlord misconduct cases. See Human Rights Comm'n v. LaBrie, Inc., 164
Vt. 237, 242, 668 A.2d 659, 663 (1995) (challenge to eviction from mobile
home park because tenants had children; damages of $1500 for emotional
injury and $3000 for loss of civil rights); Gokey v. Bessette, 154 Vt.
560, 562-63, 580 A.2d 488, 490-91 (1990) (award of $6600 for violation of
warranty of habitability and retaliatory eviction). Obviously, each of
the cases must be decided on its own individual facts.
Viewing the evidence here in support of the verdict, we cannot say
that the verdict is entirely excessive. The anonymous attacks on the
security of plaintiff's home created fear for the
safety of herself and her three-year-old child and emotional damage. There
is no exact right amount to compensate for this kind of injury.
B.
Defendant next argues that the court erred in allowing the jury to
award punitive damages against the trust. Relying on Brueckner, 169 Vt.
at 130, 730 A.2d at 1096, the trust argues that plaintiff was required to
show that the trustees either directed, participated in or ratified Leon
Roy's unlawful acts, but failed to do so as shown by the dismissal of Mary
Anne Roy as a party and the jury verdict in favor of Marcien Roy. The
language of Brueckner is taken from Shortle v. Cent. Vt. Pub. Serv. Corp.,
137 Vt. 32, 33, 399 A.2d 517, 518 (1979), and is a truncated version of the
alternative elements. The showing the trust asserts is absent is required
only if the act on which punitive damages is based is "that of the
governing officers of the corporation or one lawfully exercising their
authority." Id.
The relevant elements necessary for imposition of punitive damages
against a master or principal are more fully explained in Restatement
(Second) of Torts § 909 (1979). See also Restatement (Second) of Agency §
217C (same). Section 909 sets forth four alternative elements necessary
to impose vicarious liability for punitive damages; the third is that "the
agent was employed in a managerial capacity and was acting in the scope of
employment." Restatement (Second) of Torts at § 909(c). The commentary
explains that the purpose of vicarious responsibility in this instance,
even in the absence of fault on the part of the employer, is to serve "as a
deterrent to the employment of unfit persons for important positions."
Id. cmt. b. Plaintiff proved the elements of § 909(c) and for the reason
stated in the commentary we affirm the court's decision to uphold the
award of punitive damages against the trust.
C.
Finally, defendants argue that the punitive damages award was
excessive and in violation of the due process clause of the Fourteenth
Amendment to the United States Constitution. They rely on their
characterization of Leon Roy's actions as "two minor acts of vandalism" and
the ratio between the amount of punitive damages awarded - $100,000 - and
the amount of compensatory damages proved, which they assert is $418.
We start with defendants' due process claim. We agree that the
critical precedent is BMW of North America, Inc. v. Gore, which sets forth
guidelines to determine whether a punitive damage award is so excessive as
to deny due process. We do not have to get into the decision in depth to
decide this issue. The BMW factors are the degree of reprehensibility, the
ratio between compensatory and punitive awards, and possible sanctions for
similar conduct. 517 U.S. at 574-75. All of these factors support the
jury's award of punitive damages in this case.
The most important factor is the reprehensibility of defendants'
conduct. On this point, defendants minimize Leon Roy's conduct to the
point that it is unrecognizable. Looking at the self-help eviction
actions in isolation, Leon's actions in smashing all of plaintiff's windows
and cutting off her power are marked by violence or a threat of violence
and demonstrate an indifference or reckless disregard for the health and
safety of others. See id. at 576-77. Although the harm he inflicted was
primarily emotional and economic, there was a serious threat that the acts
would cause physical harm, especially to plaintiff's three-year-old
daughter.
The central point of this case, however, is that Leon's actions
against plaintiff should not be viewed in isolation. Plaintiff showed
that Leon Roy engaged in a pattern of unlawful self-help eviction actions
against residents in the park. She demonstrated that these actions were
part of an
illegal scheme to gain ownership of all homes in the park at unreasonably
low prices. She showed that defendants had been enjoined from such
conduct in the past, but it continued. She even showed that smaller
amounts of punitive damages had been awarded against defendants, but the
awards had not deterred the illegal conduct. We find that defendants'
conduct was particularly reprehensible and warranted a large punitive
damage award.
To the extent that we need consider the ratio between the compensatory
damages award and punitive damages award, we conclude that the ratio of 10
to 1 is reasonable in this case. Indeed, courts have routinely upheld
much greater ratios applying the Gore standards. See, e.g., Walston v.
Monumental Life Ins. Co., 923 P.2d 456, 467-68 (Idaho 1996); Schaffer v.
Edward D. Jones & Co., 552 N.W.2d 801, 815-17 (S.D. 1996). In Harris v.
Soley, 756 A.2d at 509, the Maine Supreme Court recently upheld a punitive
damage award sixteen times that of the compensatory award for landlord's
"intolerable" conduct toward tenants. The purpose of punitive damages is
to deter misconduct, and thus, courts can consider "the possible harm to
other victims" that might result if similar behavior is not deterred. TXO
Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460 (1993) (upholding
punitive damages award over 400 times greater than the compensatory damage
award). Obviously, the jury here faced a strong need to fashion a
punitive damage award that would deter defendants' ongoing illegal conduct
and scheme and prevent further harm to park residents. In addressing this
need, it had compelling evidence that a smaller punitive damage award,
levied in 1986, had not deterred the misconduct.
The possible sanctions available for like conduct also weigh in favor
of upholding the jury's punitive damages award. Any person who fails to
comply with the Act or conditions, restrictions or limitations contained
in a permit faces a fine of up to $1000, or imprisonment for up to six
months, or both. 10 V.S.A. § 6205(a). The Act authorizes the State to
revoke a park owner's permit to operate. Id. § 6233(c). Furthermore, it
is not inconceivable that defendants' conduct could subject them to other
criminal penalties. See, e.g., 13 V.S.A. §§ 3701 (unlawful mischief),
1025 (recklessly endangering another person).
Defendants' argument fares no better under our standards on the
reasonableness of punitive damage awards. We overturn a punitive damage
award only if it is "manifestly and grossly excessive." Crump v. P&C Food
Markets, Inc., 154 Vt. 284, 298, 576 A.2d 441, 450 (1990) (internal
quotations omitted). Not only do we defer to the discretion of the jury,
see Powers v. Judd, 150 Vt. 290, 294, 553 A.2d 139, 141 (1988), we also
defer to the judgment of the trial court which heard the evidence, see
Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 143 Vt. 66, 78, 461 A.2d 414, 420 (1983), overruled on other grounds by Lent v. Huntoon, 143
Vt. 539, 549, 470 A.2d 1162, 1170 (1983). Although a jury can award
punitive damages only if it has awarded compensatory damages, we have no
requirement that there be any particular ratio between the two awards.
See Crump, 154 Vt. at 298, 576 A.2d at 449.
For the same reasons that the punitive damage award is not
unconstitutional, it is also not manifestly and grossly excessive. The
amount lies within the discretion of the jury.
IV.
Defendants raise two counterclaim errors: (1) Marcien and Mary Anne
Roy were entitled to judgment for slander as a matter of law; and (2) the
court erred in dismissing the ejectment count.
A.
The first of these issues arises from an amendment to defendants'
counterclaims that they
attempted to make before the start of the evidence on the first day of
trial. The court denied it at that time, but allowed it at the close of
the evidence. The motion was made orally, and the amendment was never
reduced to writing. In essence, the charge to the jury became the only
description of the slander counterclaim. It stated: "Defendants have made
a counterclaim that Jodi Sweet falsely accused them in public, of criminal
conduct by stating that she believed they were responsible for the acts of
vandalism at her mobile home." The claim is based on plaintiff's
testimony that she stated to the police, co-workers and others that she
thought the Roys were responsible for the vandalism.
The charge to the jury itemized four elements of the tort, including
that plaintiff's statements were false and that plaintiff made them
"without exercising the care a reasonable person would have in determining
whether they were true or false." It reiterated that truth is an absolute
defense to slander.
The essence of the claims of Marcien and Mary Anne Roy is that since
they were exonerated from direct participation in the self-help eviction,
they were entitled to recover even though the jury found that Leon
committed the acts alleged and the court found that the trust, as park
owner, was vicariously responsible for them.
A major difficulty with defendants' argument is that they did not show
the allegedly defamatory statements with any specificity and never, prior
to their post-trial motion, tried to differentiate among the members of
the Roy family. Although they raised an issue in the motion, they adopted
a different theory from that raised here. They argued that the jury was
never instructed to consider the slander claim in light of the fact that
it found that Marcien Roy did not personally commit the vandalism and
claimed "Marcien Roy is entitled to consideration by the jury of his
claim against plaintiff for slander." We assume they did not continue with
that theory because they never objected to the jury instructions.
Even if defendants have preserved their claim, we conclude that they
have not shown reversible error. If they believed, as they currently
argue, that plaintiff's statements were defamatory as a matter of law,
they were obligated to obtain a ruling to that effect at the close of the
evidence. Instead, the issue was submitted to the jury "because the
connotation of the . . . spoken words was ambiguous." Lent v. Huntoon,
143 Vt. 539, 547, 470 A.2d 1162, 1168 (1983). While defendants proved
that plaintiff made statements, they provided only sketchy evidence of the
content of the statements. The jury could find that they failed to show
that plaintiff made a defamatory statement against Marcien or Mary Anne.
They could also find that any statements made by plaintiff were true
because the trust was responsible for the actions of Leon Roy. See
Weisburgh v. Mahady, 147 Vt. 70, 73, 511 A.2d 304, 306 (1986) (statement is
not actionable if "substantially accurate"). Finally, they could have
found that neither Marcien nor Mary Anne proved any "actual harm." Wood
v. Wood, 166 Vt. 608, 609, 693 A.2d 673, 674 (1997) (mem.).
B.
Finally, defendants argue that the court erred in dismissing their
counterclaim for ejectment. The court's ruling on this issue is related to
that affirmed above holding that plaintiff was entitled to the protection
of the Act and could not be evicted by self-help means. In resolving the
counterclaim, however, the court went further and ruled that defendants
were obligated to allow plaintiff to apply to be a tenant and to consider
her application based on the uniform admission standards applicable to any
applicant. The court made this ruling in response to Leon Roy's testimony
that he would not consider providing a lease to any person who bought a
mobile home
in the park without first going through the application process, and to
defendants' legal position that anyone who did not apply for admission
prior to buying a home in the park was a trespasser, not entitled to the
protections of the Act.
We need not get as far into the construction of the Act as the
superior court did. We have ruled above that plaintiff was a mobile home
park resident, see 10 V.S.A. § 6201(6), and, as such, could not be evicted
by self-help, see id. § 6237(a)(1). The same section of the Act which
prohibits self-help eviction also requires that the park owner, "[p]rior
to the commencement of any eviction proceeding," notify the resident "by
certified or registered mail" of the grounds for the eviction proceeding
or that eviction may be commenced if the resident does not pay overdue rent
within twenty days. Id. § 6237(2). Defendants never proved they sent
such a notice. In fact, Leon Roy testified that he had never sent any
written communication to plaintiff. In the absence of such notice, the
court correctly ruled that defendants could not evict plaintiff by
ejectment.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
----------------------------------------------------------------------------
FOOTNOTES
FN1. Defendants have treated the evidence as prior bad act evidence,
inadmissible under V.R.E. 404(b), despite the fact some of it related to
events subsequent to the vandalism of plaintiff's mobile home. In view of
defendants' position, we have likewise assumed that all the evidence is
governed by Rule 404(b).
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