B & F Land Development, LLC v. Steinfeld, 07-252.

• Decision Date: 13 August 2008
• Docket Number: No. 07-252.,07-252.
• Citation: 2008 VT 109,966 A.2d 127
• Court: Vermont Supreme Court
• Parties: B & F LAND DEVELOPMENT, LLC v. Geoffrey T. STEINFELD.

966 A.2d 127

2008 VT 109

B & F LAND DEVELOPMENT, LLC v. Geoffrey T. STEINFELD.

No. 07-252.

Supreme Court of Vermont.

August 13, 2008.

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

ENTRY ORDER

¶ 1. Plaintiff B & F Land Development, LLC raises several claims of error arising out of a contract dispute with an excavation contractor, defendant Geoffrey Steinfeld. B & F's complaint against Steinfeld alleged that he: (1) negligently constructed a roadbed for B & F; (2) breached his contract with B & F; (3) converted 1,500 cubic yards of gravel; (4) was unjustly enriched by removing the gravel; and (5) violated Vermont's Consumer Fraud Act. Steinfeld counterclaimed for $10,140 in unpaid bills for excavation work, plus costs, prejudgment interest, and attorney's fees. The trial court granted summary judgment to Steinfeld on the negligence and consumer-fraud claims and dismissed them; the remaining claims were tried to a jury over two days. The jury returned verdicts for Steinfeld on all of the claims, and judgment was ultimately entered in his favor. This appeal followed. We affirm.

¶ 2. The pertinent facts may be briefly recounted. In 2003 the parties entered into a contract under which Steinfeld would perform certain excavation services for B & F, and would also provide materials related to the work. B & F is a real-estate developer, and Steinfeld is a sole proprietor whose business is excavation and logging. Part of the contracted work was to excavate a roadbed and underground utility lines to service four custom homes that B & F planned to build in Manchester, Vermont. Steinfeld performed some excavation and road-building work in the spring and summer of 2004, and presented B & F with a first invoice in April 2004, which B & F promptly paid. This dispute arises largely out of a later invoice, submitted by Steinfeld to B & F in person at the site on June 12, 2004. That invoice, according to Steinfeld, carried forward the $9,120 balance due on a June 8 invoice, and also included new charges of $1,020. B & F did not immediately object to the invoice, but at a jobsite meeting on July 7, 2004, accused Steinfeld of wrongfully taking gravel from the worksite.

¶ 3. The invoice was still unpaid when B & F ultimately filed suit in July 2005, asserting claims against Steinfeld for negligence, breach of contract, conversion, and unjust enrichment. Steinfeld counterclaimed to demand payment of the outstanding invoice. The complaint was then amended to include a claim under the Consumer Fraud Act, 9 V.S.A. §§ 2451-2480n. Steinfeld answered the amended complaint, and filed an amended counterclaim including a claim under the Prompt Payment Act, 9 V.S.A. §§ 4001-4009. B & F's negligence and consumer-fraud claims were dismissed at the summary-judgment stage, and the other claims and counterclaims were tried to a jury over two days. The jury found for Steinfeld, awarding him $10,140 on his counterclaim. Steinfeld then filed a motion for attorney's fees and prejudgment interest, which the trial court granted by written order. This appeal followed. Further facts are adduced as necessary in our discussion of the individual claims.

¶ 4. First, B & F claims that the trial court erred in granting summary judgment to Steinfeld on B & F's consumer-fraud claim. B & F asserts that the trial court erred in concluding (1) that B & F was not a "consumer" as defined in 9 V.S.A. § 2451a, and (2) that the dispute was a classic breach-of-contract suit not subject to the Act, even if B & F were found to be a "consumer." Either of the trial court's conclusions is sufficient to support a grant of summary judgment; thus, we can affirm on either basis.

¶ 5. B & F's briefing concerning the consumer-fraud claim is insufficient. B & F's response to the trial court's conclusion that this was essentially a contract dispute—and therefore not subject to the CFA—is, in its entirety, that "the Court's conclusion was erroneous given the nature of the allegations of the Appellant's claims and that the Court's determinations in regard to the [CFA] and decision not to charge the jury on those claims amounted to reversible error." This bare claim of error does not approach the standards set by Rule 28(a)(4) of the Vermont Rules of Appellate Procedure, which states:

The argument shall contain the issues presented, how the issues were preserved, the contentions of the appellant and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.

(Emphasis added.) B & F's brief discloses neither how this issue was preserved nor the reasons for B & F's contentions, cites no authority of any kind, and does not cite the record.^* As noted, the trial court announced two reasons for granting summary judgment, and either reason was sufficient. In order for us to reverse the summary judgment, B & F would have had to show that both of the trial court's rationales were erroneous. It has failed to do so. See In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988) ("It is the burden of the appellant to demonstrate how the lower court erred warranting reversal.").

¶ 6. B & F next raises two claims of error relating to purported jury bias. First, B & F argues that the jury was biased against plaintiff by defense counsel's reference to a "mafia of dumptrucks" during closing argument. The two principal owners of B & F are, according to B & F, of Italian descent, and residents of Long Island. Steinfeld is a lifelong Vermont resident; the record does not reveal his lineage. While we take very seriously claims of regional or ethnic bias in our judicial system, the claim here was not preserved for appeal. B & F did not object to the statement when it was made, or at any time prior to this appeal. See Agency of Natural Res. v. United States Fire Ins. Co., 173 Vt. 302, 311, 796 A.2d 476, 482 (2001).

¶ 7. Even if the claim were properly preserved for appeal, it is without merit. B & F's theory at trial was that Steinfeld had converted a tremendous amount of gravel—1,500 cubic yards—by transporting it offsite. Both sides agree that, to do so, he would have had to make a huge number of trips with dump trucks full of the material. It is also undisputed that Steinfeld does not himself own a dump truck, and that he would therefore have had to retain the services of one (or, more likely, several) such trucks in order to remove this much material from the site. The printed case contains no evidence that this happened. The "mafia of dump trucks" statement was a reference to Steinfeld's alleged activities, not to B & F or its principals. Steinfeld's counsel's choice of words may have been odd, but their use appears only to convey that the removal of such a large amount of gravel would have required a large number of trucks illicitly working in concert. As noted, B & F did not object to the statement when made, and the judge did not strike the statement on his own motion. There was no error.

¶ 8. B & F's second basis for claiming jury bias is that the jury deliberated for only half an hour before returning a verdict, after a two-day trial. The claim is both inadequately briefed and entirely disposed of by our holdings in State v. Morrill, 127 Vt. 506, 253 A.2d 142 (1969), and State v. Lumbra, 122 Vt. 467, 177 A.2d 356 (1962), neither of which B & F cites on appeal. In Morrill, we upheld a criminal jury verdict arrived at after half an hour, holding that "[t]here is no law which requires a jury to deliberate any longer than may be necessary to agree upon a verdict." Morrill, 127 Vt. at 509, 253 A.2d at 144. Similarly, in Lumbra, we upheld a verdict arrived at after eight minutes of deliberation. Lumbra, 122 Vt. at 469-70, 177 A.2d at 358. B & F does not advance any argument as to why these cases are wrongly decided or inapplicable in the civil context. Indeed, B & F does not cite a single case or other authority in support of this claim. We find no error.

¶ 9. B & F also takes issue with four aspects of the judgment in favor of Steinfeld's counterclaim under the Prompt Payment Act, 9 V.S.A. §§ 4001-4009. The first claim is that "the jury erred in determining that [B & F] owed [Steinfeld] $10,140 on its counterclaim." Although B & F's brief does not explain the reasons for the claim and lacks reference to any authority, statutory or otherwise, the idea seems to be that B & F had a good-faith basis for withholding part of the money that would otherwise have been due to Steinfeld because of Steinfeld's alleged conversion of the gravel. See 9 V.S.A § 4007. B & F's sole support for this contention is the trial testimony by one of the principals of B & F. There was, however, a factual dispute on this issue at trial, and B & F did not object either to the special verdict form used to arrive at the $10,140 figure, or to the jury charge. Nor did B & F file any motions with the court asking that it reconsider the jury's verdict on the counterclaim. See V.R.C.P. 59. Thus, we do not reach the claim on appeal. See Agency of Natural Res., 173 Vt. at 311, 796 A.2d at 482.

¶ 10. To the extent that the second asserted error regarding the counterclaim—that the jury's verdict "was unsupported by the evidence or contrary to the evidence at trial"—is distinct from the claim discussed in the preceding paragraph, and assuming it is adequately presented for our review, it is without merit. B & F's argument is simply that the jury improperly chose to credit Steinfeld's witnesses and not B & F's; the briefing is a recitation of the testimony favorable to B & F. It is black-letter law that assessing witness credibility and weighing the evidence are the unique province of the jury. See Lockwood v. Lord, 163 Vt. 210, 216, 657 A.2d 555, 559 (1994). We will affirm a jury verdict when it "can be justified upon any reasonable view of the evidence." Jackson v. Rogers, 120 Vt. 138, 150, 134 A.2d 620, 627 (1957).

¶ 11. The jury's verdict here...