Alberino v. Balch

• Decision Date: 24 October 2008
• Docket Number: No. 07-266.,07-266.
• Citation: 969 A.2d 61,2008 VT 130
• Parties: Susan ALBERINO v. David BALCH.
• Court: Vermont Supreme Court

969 A.2d 61

2008 VT 130

Susan ALBERINO v. David BALCH.

No. 07-266.

Supreme Court of Vermont.

October 24, 2008.

Motion for Reargument Denied December 30, 2008.

Present: REIBER, C.J., DOOLEY, JOHNSON, BURGESS and SKOGLUND, JJ.

ENTRY ORDER

¶ 1. This is an appeal from the decision of the superior court granting injunctive relief to appellee David Balch, ordering appellant Susan Alberino to remove a fence she constructed between their properties. We affirm.

¶ 2. Alberino and Balch have been feuding for over a decade about, among other things, Alberino's dogs, which have at times barked loudly enough to bother Balch, and have trespassed on Balch's land. The record reveals an acrimonious history that includes allegations of harassment, trespass, timber trespass, defamation, and conversion. Several years ago, Alberino caused to be erected an orange plastic mesh snow fence about 500 feet long and five feet high between her property and that of Balch. The fence was generally on the parties' shared property line, which is closer to, and more visible from, Balch's house than Alberino's. Parts of the fence, in fact, encroached on Balch's property, and in places the fence was stapled to trees owned by Balch.

¶ 3. In 2001, after the snow fence was erected, Alberino filed a harassment complaint against Balch in small-claims court. Balch counterclaimed, alleging trespass and nuisance based in part on the presence of the fence. The case was then transferred to superior court, where it has remained until this appeal. The claims were adjudicated in a November 15, 2001 order mandating, in relevant part, that Alberino remove the plastic fence.

¶ 4. After Alberino removed the plastic fence, she hired a contractor to build a new wooden fence in virtually the same location, albeit this time entirely on her side of the boundary. The new fence, completed in 2002, is 488 feet long and consists of four-by-eight-foot sheets of unpainted plywood affixed to posts. The sheets of plywood are oriented vertically, so they are eight feet tall. The plywood has begun to delaminate, curl, warp, and buckle. The sheets are not flush with the ground, the fence does not enclose any area, and there is at least one hole in the fence where one of the plywood sheets has warped and detached from the post.

¶ 5. In March 2004, after Alberino moved to dismiss the underlying case, Balch filed a motion for contempt of the 2001 order that had required Alberino to remove the plastic fence. Among other things. Balch requested that Alberino be ordered to remove the plywood fence. The superior court conducted a hearing on the motion and made a site visit. Photographs of the fence were submitted into evidence, and are part of the record on appeal. At the hearing, Alberino testified that the fence was built primarily to protect her privacy, but also to prevent her dogs from going onto Balch's land, and to minimize noise. Balch also testified at the hearing, detailing the nature of the fence and its impact on his use and enjoyment of his property, and stating that the fence was more visible from his house than from Alberino's. Further, Balch testified that the fence has curled so much that it encroaches on his land, that it casts a shadow "halfway across [his] land," and that it "does not inhibit sound at all." Balch further testified that, after the plywood fence was built, the dogs "go where they want," including onto his property.

¶ 6. The court issued findings of fact and conclusions of law on August 24, 2005. The court found that the fence served "no objective purpose," either by containing the dogs, lessening the noise of their barking, or by effectively protecting Alberino's privacy. The court further found that "the fence is an ugly wall." Accordingly, citing 24 V.S.A. § 3817, the court ordered that the plywood panels be removed. See 24 V.S.A. § 3817 ("A person shall not erect or maintain an unnecessary fence or other structure for the purpose of annoying the owners of adjoining property by obstructing their view or depriving them of light or air.").

¶ 7. Our review of the court's decision to grant injunctive relief is for abuse of discretion. In re Letourneau, 168 Vt. 539, 551, 726 A.2d 31, 40 (1998). We review the court's findings in the light most favorable to Balch, disregarding modifying evidence. In re M.B., 2004 VT 58, ¶ 6, 177 Vt. 481, 857 A.2d 772 (mem.). We will not set aside factual findings unless they are clearly erroneous. Id. Findings are clearly erroneous if there is no credible evidence in the record to support them. Okemo Mountain, Inc. v. Lysobey, 2005 VT 55, ¶ 8, 178 Vt. 608, 883 A.2d 757 (mem.). We will not reverse the trial court's decision if the record below reveals any legal grounds that would justify the result. Larkin v. City of Burlington, 172 Vt. 566, 568, 772 A.2d 553, 556 (2001) (mem.). Viewed through that deferential lens, the findings here amply support the trial court's decision to order the fence removed, and there is credible evidence in the record to support the findings.¹

¶ 8. We first consider Alberino's general contention that the trial court improperly relied on its own observations during a site visit. It appears from the record, however, that the trial court relied on the site visit only to assist in its evaluation of the testimony and other evidence. Such use of the site visit was entirely proper. As this Court has held in several contexts, the finder of fact may conduct a site visit or other analogous inspection, and may "base its findings upon such examination together with all the evidence in the case." Daigle v. Conley, 121 Vt. 305, 309, 155 A.2d 744, 748 (1959) (emphasis added); see also In re Quechee Lakes Corp., 154 Vt. 543, 551-52, 580 A.2d 957, 962 (1990) (administrative fact-finder may rely to same extent as trial judge on knowledge gained from a site visit); Cass-Warner Corp. v. Brickman, 126 Vt. 329, 336, 229 A.2d 309, 314 (1967) (affirming verdict based in part on court's view of allegedly defective bulkhead); McAndrews v. Leonard, 99 Vt. 512, 521, 134 A. 710, 714 (1926) (upholding jury verdict based in part on jury's inspection of tort plaintiff's allegedly injured skull, holding that "the jury had a right to base their verdict upon such examination together with all the evidence in the case"). The out-of-state cases Alberino cites in opposition are distinguishable on their facts, and Alberino offers no reason to depart from our own settled precedent in this area: indeed, Alberino has not cited any of our site-visit cases. We find no error in the court's apparently limited reliance on the site visit.

¶ 9. Alberino also contends that the trial court erred in finding that the fence served no useful purpose, and in ordering that the fence be removed without finding that its sole purpose was to annoy Balch. Alberino cites various out-of-state cases for the proposition. If the fence had any useful purpose, Alberino claims, the court was without power to order it removed. There are, however, also cases holding that a fence with a primary purpose to annoy is also subject to abatement. The cases are uniform in their approval of reliance on the history of relations between neighbors as evidence of intent to annoy. See, e.g., Gertz v. Estes, 879 N.E.2d 617, 621 (Ind.Ct.App.2008) ("The parties' conduct and the extraordinary nature of the fence were adequate to overcome [the] assertion that the eight-foot fence was intended to protect eighteen-inch tree seedlings."). We need not decide which standard is required generally; the factual backdrop here— the photographs of the fence, the site visit, the contempt order concerning the other fence in virtually the same location, and over fifteen years of increasingly acrid disputes about dogs, brush piles, trespass, plowing, and noise—supports a finding that the fence was intended solely to annoy Balch by obstructing his view and shading his property. Thus which standard is employed is immaterial to the outcome of this appeal.

¶ 10. Alberino, however, contends that no such finding was made in any event. While Alberino is correct that the court did not explicitly find that her purpose was either solely or primarily to annoy Balch, the only plausible reading of the trial court's order is that such a finding was implicit. See Gamache v. Smurro, 2006 VT 67, ¶ 18, 180 Vt. 113, 904 A.2d 91 (affirming family court's decision on property distribution despite decision's reliance on implicit finding). Here, the contention that the plywood fence was a so-called "spite fence" was at all times explicitly linked to the contention that it served no legitimate purpose. The trial court did explicitly find that none of Alberino's claimed reasons for building the fence were credible, that the fence "serves no objective purpose," and that it is a "spite fence." These findings, coupled with the undisputed years-long feud between the parties, and the testimony of Balch, support the implied finding that the fence's sole purpose was to annoy Balch by interfering with his view.

¶ 11. The trial court's finding that the fence was not flush with the ground and thus was useless to prevent the dogs from crossing the property line is supported by the photographs adduced by defendant. Those photographs plainly show gaps in the lower part of the fence, resulting from warping panels and from Alberino's failure to align the bottoms of the panels with the varied terrain.² Balch also testified that the irregular plywood boards were warping and "cupping" as much as two feet in places, which supports the finding that; there were holes in the fence capable of admitting a small dog. Alberino's evidence that the bottoms of some panels were "contoured" with a chainsaw is modifying evidence, which we disregard in evaluating the decision to grant injunctive relief. In re M.B., 2004 VT 58, ¶ 6, 177 Vt. 481, 857 A.2d 772. We note also that it is undisputed that the fence does not actually prevent dogs...