Batchelder v. Mantak

• Citation: 136 Vt. 456,392 A.2d 945
• Decision Date: 14 September 1978
• Docket Number: No. 50-77,50-77
• Parties: J. W. BATCHELDER v. Frank J. and Ruth MANTAK, George E. and Barbara B. Trask, and Edward J. Donnis.
• Court: Vermont Supreme Court

Page 945

392 A.2d 945

136 Vt. 456

J. W. BATCHELDER v. Frank J. and Ruth MANTAK, George E. and Barbara B. Trask and Edward J. Donnis.

No. 50-77.

Supreme Court of Vermont.

Sept. 14, 1978.

Sullivan & McCaffrey, Rutland, for plaintiff.

Ruth H. Mantak, pro se.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

Plaintiff Batchelder brought this action to recover the alleged balance due from the defendants Frank and Ruth Mantak, George and Barbara Trask, and Edward Donnis for labor and services performed for them. The trial court dismissed the action against Donnis. After hearing, the court made findings and conclusions and awarded judgment against the Trasks and the Mantaks.

The lower court's findings of fact may be summarized as follows. Frank and Ruth Mantak, who own real estate north of Route 11 in Londonderry, Vermont, and George and Barbara Trask, who own real estate south of Route 11, wanted a land survey of their respective properties to determine the actual amount of their acreage. At all times material the plaintiff was self-employed performing mostly land record work and some field survey work. "Through Edward Donnis the plaintiff was engaged to do some work" for the Trasks and the Mantaks. The plaintiff was to supply the land record research and Donnis was to perform the field survey utilizing that research. Pursuant to the "engagement" the plaintiff prepared and delivered to the defendants a series of maps establishing the evolution of the boundaries of the defendants' properties, as determined from the land records. After delivery of the maps to the defendants, another surveyor hired by the Trasks, one O'Hara, surveyed the Trasks' property utilizing the deed and boundary research performed by the plaintiff. In the course of his work, plaintiff billed the defendants directly, and they paid him in part. The court found that the labor and services and the hourly rate charged by the plaintiff were reasonable. The court then entered judgment in favor of the plaintiff for the unpaid balances due on the bills.

The instant action was commenced by "Batchelder Engineering Company, a Vermont corporation organized and existing in the State of Vermont." Immediately before the hearing commenced, the plaintiff orally moved to change the name of the plaintiff to J. W. Batchelder, claiming that the corporation had been dissolved many years before the services of Batchelder were engaged and that it was named plaintiff in error. The defendants objected to this substitution of parties and moved to dismiss the action on the grounds that it was brought improperly and that prejudice would result to the defendants if the substitution were allowed. The court denied defendants' motion and allowed, at least impliedly, the amendment. The defendants contend the court erred in denying their motion.

D.C.C.R. 15(a), which is identical to V.R.C.P. 15(a), permits an amendment to a party's pleading by leave of court when justice so requires. Such an amendment may include substitution of plaintiffs. Staggers v. Otto Gerdau Co., 359 F.2d 292, 296-97 (2d Cir. 1966); 3 Moore's Federal Practice P 15.08(5) (2d ed. 1974). The mandate of Rule 15(a) that leave "shall be freely given" is in keeping with traditional Vermont practice.

The historical Vermont tradition of liberality in the allowance of amendments to the pleadings, where no prejudice is involved, has not been abrogated by the . . . Vermont Rules of Civil Procedure. Rule 15(a) V.R.C.P. The measures of that liberality have been many times stated in our cases. (Tracy v. Vinton Motors, Inc., 130 Vt. 512, 513-14, 296 A.2d 269, 271 (1972)).

The trial court found that the defendants would not be prejudiced by the substitution of the parties. We agree. The defendants' ability to defend was not hampered since the basis of the suit remained the same and the principals in the case remained the same. The only witness in the plaintiff's case, J. W. Batchelder, would have remained the same with or without the amendment. And, from all that appears, the amendment was not sought in bad faith or for purposes of delay. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The trial court did not abuse its discretion in allowing the amendment.

Upon what appears to have been merely an oversight, or perhaps the result of a nearly two and one-half year interval between the time of the hearing and the filing of the court's findings and conclusions, the trial court failed to change the captions in its judgment orders to reflect the amendment allowed. The necessary corrections can be made by this Court. D.C.C.R. 60(a); see V.R.C.P. 60(a).

The Mantaks, who are residents of Connecticut, claim they never received notice of or appeared in the action. They assert that the judgment rendered against them is therefore void for want of jurisdiction. The plaintiff, who had knowledge of the Mantaks' Connecticut address, contends that they were served properly when their property in Londonderry was attached and copies of the complaint with a description of the property attached were left with the Town Clerk in Londonderry, it only being noted in the sheriff's return that the Mantaks were "out of state." See 12 V.S.A. § 3291 (prior to 1972 amendment); Deal v. Powell, 88 Vt. 404, 92 A. 648 (1914).

There was no evidence introduced at the trial establishing that Ruth Mantak owned any property in Londonderry. The trial court's finding to the contrary is clearly erroneous and cannot be sustained. D.C.C.R. 52(a); see V.R.C.P. 52(a). Service of process as to Ruth Mantak was predicated on the purported attachment of her real property. Since she had no property to attach, service of process was never properly effectuated and the court was without power to enter judgment against her, absent a voluntary appearance on her part.

The purported service of process on Frank Mantak was also defective, but for a different reason. This action was commenced in 1970. The predecessors to our current V.R.C.P. and D.C.C.R. 4(e) and (g), 12 V.S.A. §§ 911-914, which were in effect when this action was commenced, required that notice be given to an out of state defendant either personally or by publication.

The importance of the duty imposed is obvious, for the giving of the notice charges the property of the defendant in the state the same as if there had been service within the state. (Thomas v. Graves, 90 Vt. 312, 315, 98 A. 508, 509 (1916).)

It is not enough that the attachment is made; it is also required that notice be given to the out of state defendant. The 1972 amendment to 12 V.S.A. § 3291, relating to the attachment of real property, makes this clear. Indeed, the Fourteenth Amendment requires such notice. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It is clear that Frank Mantak was never properly served with process; the trial court was thus without power to enter judgment against him, absent a voluntary appearance on his part.

The plaintiff claims that if personal jurisdiction was not obtained through proper service, nevertheless the Mantaks waived the defect by entering their appearance through an attorney. The record discloses that at the opening of the hearing it was noted by the court and by counsel that the Mantaks had not answered the complaint and were not represented in court. The following colloquy then took place between the court and counsel:

(Attorney for the Trasks): I have discussed the fact that the Mantaks have not entered an appearance. The Mantaks are related to my client, Trask, and his wife has authorized me to enter an appearance on behalf of them in this action. There are questions of possible problems of service. If (plaintiff's attorney) agrees, . . . I would, with the Court's permission, enter an appearance.

(Plaintiff's Attorney): We have no objection.

Judge Ellison:

The record should show that (the Trasks' attorney) represents Mr. and Mrs. Mantak as well as George E. and Barbara B. Trask.

Despite the statement by the court at the hearing that the Mantaks were represented, the court expressly stated in its findings of fact that the Mantaks were not present at the hearing and were Not represented. Nevertheless, the court gave judgment against the Mantaks. On appeal, the Mantaks argue that the Trasks had no authority to bind them and that they (the Mantaks) never authorized the Trasks' attorney to enter an appearance for them.

Although a general appearance by an attorney cures all defects of service of process, Howe v. Lisbon Savings Bank, 111 Vt. 201, 215, 14 A.2d 3, 9 (1940), when the purported clients have never been given any notice of the pendency of the suit, as is the case here, no unauthorized appearance binds them. Whitney v. Silver, 22 Vt. 634, 637 (1850); Abbott & Co. v. Dutton, 44 Vt. 546, 551 (1872). In any event, the court's finding of fact that the Mantaks were not represented at trial, although contradictory to the court's statement made during the trial, controls, and we will not overturn that finding here. D.C.C.R. 52(a); see V.R.C.P. 52(a). Without proper service of process and without an appearance on their part, the judgment against the Mantaks must be reversed.

The trial court concluded that George and Barbara Trask were liable for the balance due on the bill submitted for work done on the property located south of Route 11. The Trasks assert several claims of error on appeal.

They first urge that the lower court erred in excluding certain evidence from the trial. The court excluded testimony from a neighbor of the Trasks which would have elicited details of work performed by the plaintiff for that neighbor. The court properly excluded the proffered evidence, as it had no relationship to the bill in question and was thus immaterial to the issue at hand. Walworth v. Barron, 54 Vt. 677, 684 (1881); Phelps, Dodge & Co. v. C. B. Conant & Co., 30 Vt. 277, 284 (1858...