Billewicz v. Kite
| Docket Number | 22-CV-04200 |
| Decision Date | 27 July 2023 |
| Parties | Johnathan J. Billewicz, Lillian E. Billewicz, and J and M Investment Trust, Plaintiffs v. Kevin L. Kite, Casella Waste Management and Hauling, Premier Roofing Solutions, and Vincent Thomas Striglia, Driver Of Black Dodge Ram Truck, Vermont License Plate 361Aa207, Defendants |
| Court | Superior Court of Vermont |
DECISION ON MOTIONS
Plaintiffs Johnathan J. Billewicz, Lillian E. Billewicz, and J and M Investment Trust (collectively "Plaintiffs") bring this tort action asserting claims for trespass, invasion of privacy, and negligent and intentional infliction of emotional distress. Defendants are two individuals and two companies, each alleged to have committed such torts by temporarily entering on certain real properties in the Town of Fair Haven which Plaintiffs allege are owned by the Trust. Plaintiffs represent themselves. Defendant Kevin L. Kite is represented by Robin O. Cooley, Esq. Defendant Casella Waste Management and Hauling ("Casella") is represented by Mark F. Werle, Esq. Defendants Premier Roofing Solutions ("Premier Roofing") and Vincent Striglia represent themselves. Defendants all move to dismiss Plaintiffs' Amended Complaint, arguing that Plaintiffs fail to state any cognizable legal claims.[1] Plaintiffs oppose the motions by seeking leave to file a second Amended Complaint, which they argue would sufficiently avoid the defects identified by Defendants and state valid legal claims. For the reasons discussed below, Plaintiffs' motion to amend their first Amended Complaint is DENIED, and Defendants' motions to dismiss are GRANTED.
The allegations in Plaintiffs' Amended Complaint, filed December 1, 2022, indicate the following:
Plaintiffs Johnathan and Lillian Billewicz are both current residents of the Town of Fair Haven. Am. Compl. ¶¶ 1-2. Plaintiff J and M Investment Trust is a trust established under the laws of Vermont, and the alleged owner of real property located at 5 Union Street and 7 Union Street in Fair Haven. Id. ¶¶ 3, 9-10. Mr. Billewicz is a beneficiary of the Trust, and Ms. Billewicz is the Trust's sole trustee. Id. ¶¶ 11-12. Mr. Kite is a Vermont attorney engaged in private practice2] Defendants Casella and Premier Roofing are Vermont companies; and Mr Striglia is an employee of Premier Roofing. Id. ¶¶ 4-7. In October and/or November of 2022 Defendants or their employees temporarily entered into or on the real properties at 5 and 7 Union Street without having received permission from Plaintiffs to do so. Id. ¶¶ 14-20. Defendants lack ownership or a right to possess those real properties. Id. ¶¶ 21-24. When Casella entered the subject properties, it placed two trash dumpsters on the properties. Id. ¶ 38. Later, employees of Premier Roofing removed items belonging to the Billewiczs from inside structures located on the properties and threw them into the two Casella dumpsters. Id. ¶ 40. This led to damage to and/or destruction of the personal belongings of the individual Plaintiffs. Id. ¶ 39. Plaintiffs also allege that, as a result of Defendants' actions, Plaintiffs have suffered an invasion of privacy and related damages, as well as mental anguish or emotional distress, and related damages. Id. ¶¶ 43-51, 71-79.
In reviewing a motion to dismiss, the Court accepts "all facts alleged in the complaint as true and in the light most favorable to the nonmoving party." Coutu v. Town of Cavendish, 2011 VT 27, ¶ 4; see also Winfield v. State, 172 Vt. 591, 593, 779 A.2d 649, 652 (2001) (when considering a motion to dismiss under Rule 12(b)(6) the court must "assume that all well pleaded factual allegations in the complaint are true, as well as all reasonable inferences that may be derived therefrom"). However, to the extent a party asserts "conclusory allegations or legal conclusions masquerading as factual conclusions," the Court is not required to accept them as true. Rodrigue v. Illuzzi, 2022 VT 9, ¶ 33 (quotation omitted). "The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the law of the claim, not the facts that support it." Samis v. Samis, 2011 VT 21, ¶ 9. Dismissal is proper when there is no set of facts and circumstances alleged in the complaint which, if proved would entitle the plaintiff to relief. Id.; see also Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 11 ().
All Defendants move to dismiss Plaintiffs' Amended Complaint on similar grounds. They argue that Plaintiffs have failed to plead the necessary elements of claims for negligent and intentional infliction of emotional distress. They also argue that Plaintiffs do not (and cannot) allege that they had lawful possession of 5 or 7 Union Street at the time the alleged trespass and invasion of privacy occurred, and that such claims necessarily depend on J and M Investment Trust holding valid legal title to the properties. Plaintiffs oppose Defendants' motions, but do not dispute the merits of Defendants' arguments. Instead, they have filed a motion to amend their first Amended Complaint, arguing that their proposed second Amended Complaint would "address" their failure to properly allege that they have lawful possession of the premises in question and would otherwise cure the deficiencies.[3]
As an initial matter, in light of Plaintiffs' failure to offer any direct or substantive opposition to Defendants' motions to dismiss, the Court finds that dismissal of Plaintiffs' first Amended Complaint is warranted. The only question remaining, therefore, is whether this case may go forward on the basis of Plaintiffs' proposed second Amended Complaint.
Under Rule 15(a) of the Vermont Rules of Civil Procedure, after a party has amended its pleadings once as a matter of course "a party may amend the party's pleading only by leave of court or by written consent of the adverse party and leave shall be freely given when justice so requires." While that standard is "liberal, it is not without teeth." Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10. A trial court may deny a motion to amend when the "amendment would be futile," meaning that the "amended complaint cannot withstand a motion to dismiss." Vasseur v. State, 2021 VT 53, ¶ 7. Such is the case here.
First, with respect to the claims for negligent and intentional infliction of emotional distress, Plaintiffs' proposed second Amended Complaint includes no new allegations demonstrating that Plaintiffs were at risk of any immediate physical harm or otherwise in a zone of danger while Defendants were on the property. See, e.g., Brueckner v. Norwich Univ., 169 Vt. 118, 125, 730 A.2d 1086, 1092 (1999) . Nor do Plaintiffs add any allegations to demonstrate that Defendants engaged in actions that "were so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable." Davis v. Am. Legion, Dep't of Vt., 2014 VT 134, ¶ 20. Accordingly, Plaintiffs' motion for leave to amend is denied as to these claims.
Second Defendants are correct that Plaintiffs' trespass and invasion of privacy claims cannot stand absent an allegation that they had lawful possession of 5 and 7 Union Street, which in turn requires that J and M Investment Trust holds valid title to these properties. The Court notes that Plaintiffs' allegations that the Trust "has derivative constructive possession and a constructive possessory interest in" 5 and 7 Union Street are "conclusory allegations or legal conclusions masquerading as factual conclusions," which the Court is not required to accept as true. Colby, 2008 VT 20, ¶ 10 (quotation omitted) ( as conclusory plaintiff's allegation that she "suffered intentional infliction of emotional distress" as a result of a "malicious and wrongful" termination). Plaintiffs have failed to cite a single Vermont case that recognizes a party's right to claim trespass under circumstances where they do not possess at least a portion of the subject premises. Further, under Vermont law, constructive possession cannot be found unless the property is actually occupied and possessed, at least in part, by the party asserting the claim. See N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 441, 736 A.2d 780, 784 (1999) (constructive possession is a "doctrine under which a claimant achieves possession of an entire plot of land through actual occupation of a part"). Thus, Plaintiffs' failure to allege that they were in actual possession of at least a part of the subject properties in October and November of 2022 is fatal to their proposed amended claims for trespass. Likewise, Plaintiffs' proposed amendment that Defendants' actions (or perhaps only Kite's) "were substantial and highly offensive to a reasonable person" is a legal conclusion. None of the conduct alleged by Plaintiffs satisfies the demanding standard of being "substantial interference" that "would be highly offensive to a reasonable person." Weinstein v. Leonard, 2015 VT 136, ¶ 29 (...
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