Burgess v. Lamoille Hous. P'ship, No. 15–221.

Docket NºNo. 15–221.
Citation145 A.3d 217, 2016 VT 31
Case DateMarch 11, 2016
CourtUnited States State Supreme Court of Vermont

145 A.3d 217
2016 VT 31

Matthew BURGESS
v.
LAMOILLE HOUSING PARTNERSHIP, Town of Morristown, Mary Ann Wilson as Collector of Taxes and Sharon Green, Esq.

No. 15–221.

Supreme Court of Vermont.

March 11, 2016.


145 A.3d 218

Matthew A. Burgess, Pro Se, Morristown, Plaintiff–Appellant.

Graham Hayes Govoni of Black & Govoni, PLLC, Morrisville, for Defendant–Appellee Lamoille Housing Partnership, Inc.

James R. Dean Mahoney of Polow Polow & Mahoney, PLLC, Hyde Park, for Defendants–Appellees Town of Morristown and Wilson.

Thomas M. Higgins of Pierson Wadhams Quinn Yates & Coffrin, LLP, Burlington, for Defendant–Appellee Green.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER, C.J.

¶ 1. Plaintiff Matthew Burgess appeals decisions of the superior court's civil division dismissing certain defendants and granting summary judgment to another defendant with respect to plaintiff's claim that he is entitled to either a tax collector's deed conveying him property he redeemed from foreclosure or damages compensating him for not being conveyed the deed. We affirm.

¶ 2. In September 2001, plaintiff's parents, John and Virginia Burgess, mortgaged property located in defendant Town of Morristown through defendant Lamoille Housing Partnership, Inc. (LHP), a nonprofit corporation that assists people in finding affordable housing. The Burgesses purchased the property through LHP's Home Land Program, by which ownership of the underlying land was severed from ownership of the house in which the Burgesses resided. Under the arrangement, a warranty deed from the U.S. Department of Agriculture Rural Development conveyed the land and improvements to the Burgesses, who granted a mortgage deed to the USDA Rural Development encumbering both the land and improvements. The Burgesses then conveyed the land to LHP, retaining only the title to the improvements. LHP and the Burgesses then entered into a ground lease granting the Burgesses a leasehold interest in the land for a ninety-nine-year term subject to certain terms and conditions, including

145 A.3d 219

that the Burgesses pay the property taxes on the entire property.

¶ 3. The Burgesses later disputed their obligation to pay property taxes and, in August 2009, filed a declaratory judgment action against the Town and LHP, claiming that their residential home should be exempt from real estate taxes and that the taxes they had paid entitled them to an ownership interest in the land itself, thereby extinguishing LHP's rights. A three-justice panel of this Court upheld the trial court's determinations that the Burgesses lacked standing to challenge the Town's taxation of the property and that their payment of taxes on the land, pursuant to their agreement with LHP, did not give them an ownership interest in the land. See Burgess v. Lamoille Housing Project, No. 2010–396, 2011 WL 4975238, at *3–4 (Vt. April 21, 2011) (unpub.mem.), http://www.vermontjudiciary.org/LC/unpublishedeo.aspx.

¶ 4. When that litigation concluded, the Burgesses' property taxes were delinquent. In 2012, the Morristown town clerk, defendant Mary Ann Wilson, in her role as delinquent tax collector, hired defendant Attorney Sharon Green to conduct a tax sale of certain properties, including the Burgess property. On February 2, 2012, the tax sale was conducted by Attorney Green acting as counsel for the Town. Plaintiff, acting in his own right rather than as an agent for his parents, made a bid at the tax sale, but his bid was not the highest. The property was purchased by Winston Jennison Investments, LLC, for $2500, subject to its possible redemption. LHP, the record owner, apparently did not attend or participate in the tax sale. Two weeks after the tax sale, plaintiff tendered a check for $1373 to Attorney Green. Plaintiff's letter accompanying the check stated that the check was being “tendered in reliance on your representations that said enclosed amount is full and final satisfaction for redemption of subject property located at 352 Jersey Heights, in Morristown, Vermont.” After the check was delivered, the town clerk's office issued plaintiff a certificate of redemption stating that the amount required to redeem the property owned by LHP was paid on February 21, 2012. The certificate was then recorded in the Town land records. As the result of the redemption, the Burgesses continued to reside at their home pursuant to their lease with LHP.

¶ 5. In December 2013, plaintiff filed a complaint against the Town and the town clerk (municipal defendants), LHP, and Attorney Green, listing as counts declaratory judgment and equitable relief, negligent misrepresentation, breach of contract, and promissory estoppel. The complaint alleged that on February 21, 2012, Attorney Green, in her capacity as attorney and agent for the municipal defendants, told plaintiff that if he submitted to her $1373 he would acquire a right to receive a tax collector's deed to the subject parcel one year and a day after the date of the tax sale. It further stated that in reliance upon Attorney Green's representation, plaintiff issued Attorney Green a check for that amount, and that she gave him a certificate of redemption, but declined to have the Town deliver to him a tax collector's deed one year and a day after the tax sale, as promised. The complaint asked the court to enter a declaratory judgment that he is entitled either to a tax collector's deed conveying the subject property to him or damages in an amount equal to the value of the subject property, which he indicated was $50,000.

¶ 6. On April 24, 2014, the superior court: (1) denied plaintiff's request for injunctive or declaratory relief against the municipal defendants because they were not legally authorized under Vermont law

145 A.3d 220

to transfer the property to him; (2) dismissed LHP as a party because plaintiff had failed to state any legally cognizable claim against it; (3) denied the municipal defendants' motion to dismiss on immunity grounds, concluding that although the municipal defendants were entitled to immunity based on plaintiff's allegations, plaintiff should be allowed limited discovery on the issue of whether the Town had purchased insurance that covered his claims and thus waived its immunity pursuant to 29 V.S.A. § 1403 ; (4) denied Attorney Green's motion to dismiss based on her claim of qualified immunity; and (5) granted Attorney Green's motion to dismiss plaintiff's breach-of-contract and promissory-estoppel counts, but denied her motion to dismiss plaintiff's negligent-misrepresentation count.

¶ 7. On February 6, 2015, the superior court, with a different judge presiding, granted the municipal defendants' renewed motion to dismiss based on its determination that the Town had not waived its municipal immunity and that plaintiff failed to state any specific facts in his complaint that would make the town clerk personally and independently liable on any recognized legal theory. On May 20, 2015, the superior court denied plaintiff's motion to reconsider the dismissal of LHP as a defendant and granted Attorney Green's motion for summary judgment on plaintiff's negligent representation claim, ruling that Attorney Green's legal duty was to the Town and not plaintiff, and that plaintiff's reliance upon Attorney Green's alleged misrepresentation was not reasonable. That same day, the superior court entered a final judgment in favor of all of the defendants.

¶ 8. On appeal, plaintiff argues that the superior court erred by granting LHP's and the municipal defendants' motions to dismiss and by granting Attorney Green's motion for summary judgment. Plaintiff first argues that the court should have kept LHP in the case pursuant to the equitable doctrine of unjust enrichment. According to plaintiff, LHP was unjustly enriched by retaining title to the subject property after he redeemed the property. He states that the superior court should have kept LHP in the case until a factfinder determined whether his complaint was proven so that the property could be held in a constructive trust for his benefit.

¶ 9. We agree with LHP that plaintiff failed to raise any equitable claim of unjust enrichment in his complaint and thus has not preserved this claim of error for appeal. See Bull v. Pinkham Eng'g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”).

¶ 10. Plaintiff points out that in denying his motion to reconsider the dismissal of LHP, the superior court addressed plaintiff's claim of unjust enrichment, stating that LHP did not unfairly receive any benefit that it should be forced to give up or pay compensation for, but rather was simply restored to the position it always had—continued ownership of the underlying parcel of land. To the extent that the superior court's statement in its ruling on plaintiff's motion for reconsideration preserved this claim of error by plaintiff, we agree with the superior court's assessment. The fact that LHP may have benefitted from plaintiff's decision to redeem the property—even assuming that plaintiff redeemed the property because Attorney Green informed him that he could obtain a tax collector's deed by doing so—does not suggest that LHP was unjustly enriched. See Legault...

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9 practice notes
  • Leclair v. Leclair, No. 16-139.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, 201 Vt. 450, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by t......
  • Leclair v. Leclair, No. 2016-139
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, ___ Vt. ___, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by t......
  • Russo v. Navient Solutions, LLC, Case No. 2:16-cv-00316
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 23, 2018
    ...he [or she] fails to exercise reasonable care or competence in obtaining or communicating the information.Burgess v. Lamoille Hous. P'ship, 2016 VT 31, ¶ 21, 201 Vt. 450, 461, 145 A.3d 217, 224 (quoting RESTATEMENT (SECOND) OF TORTS § 552(1) (1965)). The Vermont Supreme Court has recognized......
  • Hayes v. Allison Hayes, Brian Hayes & LPL Fin., LLC, No. 2018-021
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 14, 2018
    ...niece and nephew. The court thus held that wife failed to establish an essential element of her case. See Burgess v. Lamoille Hous. P'ship, 2016 VT 31, ¶ 17, 201 Vt. 450, 145 A.3d 217 ("Summary judgment is mandated where, after an adequate time for discovery, a party fails to make a showing......
  • Request a trial to view additional results
9 cases
  • Leclair v. Leclair, No. 16-139.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, 201 Vt. 450, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by t......
  • Leclair v. Leclair, No. 2016-139
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, ___ Vt. ___, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by t......
  • Russo v. Navient Solutions, LLC, Case No. 2:16-cv-00316
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 23, 2018
    ...he [or she] fails to exercise reasonable care or competence in obtaining or communicating the information.Burgess v. Lamoille Hous. P'ship, 2016 VT 31, ¶ 21, 201 Vt. 450, 461, 145 A.3d 217, 224 (quoting RESTATEMENT (SECOND) OF TORTS § 552(1) (1965)). The Vermont Supreme Court has recognized......
  • Hayes v. Allison Hayes, Brian Hayes & LPL Fin., LLC, No. 2018-021
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 14, 2018
    ...niece and nephew. The court thus held that wife failed to establish an essential element of her case. See Burgess v. Lamoille Hous. P'ship, 2016 VT 31, ¶ 17, 201 Vt. 450, 145 A.3d 217 ("Summary judgment is mandated where, after an adequate time for discovery, a party fails to make a showing......
  • Request a trial to view additional results

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