Carpentier v. Douglas Tuthill & Town of Hartford Town Clerk. Doreen Carpentier

• Decision Date: 04 October 2013
• Docket Number: 12–235.,Nos. 12–177,s. 12–177
• Parties: Doreen CARPENTIER v. Douglas TUTHILL and Town of Hartford Town Clerk. Doreen Carpentier v. Douglas Tuthill.
• Court: Vermont Supreme Court

86 A.3d 1006

2013 VT 91

Doreen CARPENTIER

v.Douglas TUTHILL and Town of Hartford Town Clerk.

Doreen Carpentier

v.Douglas Tuthill.

Nos. 12–177, 12–235.

Supreme Court of Vermont.

Oct. 4, 2013.

Paul J. Perkins of Plante & Hanley, P.C., White River Junction, for Plaintiff–Appellee.

W.E. Whittington of Whittington Law Associates, PLLC, Hanover, New Hampshire, for Defendant–Appellant.

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

BURGESS, J.

¶ 1. Defendant Douglas Tuthill, Administrator of the Estate of Paul Oakes, appeals from the jury's award of $150,000 in punitive damages to plaintiff Doreen Carpentier and the trial court's denial of his motion for remittitur. Defendant also challenges the trial court's denial of his post-judgment motion to vacate a writ of attachment. We affirm.

¶ 2. In January 2010, Paul Oakes was charged with numerous crimes based on acts alleged to have occurred at plaintiff's home. Oakes killed himself shortly before his arraignment on these charges. Following Oakes's death, plaintiff sued his estate, raising claims of assault and battery, false imprisonment, and intentional infliction of emotional distress. She sought compensatory and punitive damages. Plaintiff also requested a writ of attachment against certain real property owned by Oakes. The parties later stipulated that the court could issue a writ of attachment “without prejudice to the defendant's right to contest the attachment at a later date.”

¶ 3. The court bifurcated the liability and punitive damages components of the trial. Taking the evidence in the light most favorable to plaintiff, the following evidence was presented at the liability portion of the trial. Plaintiff lived with her grandchildren in an apartment complex for families in transition from homelessness to self-sufficiency. Plaintiff contacted Oakes Salvage to see if it would purchase her totaled car. She spoke to the owner, Paul Oakes, who showed up at plaintiff's apartment unannounced a few days later. Oakes bought the totaled vehicle, and plaintiff told him that she would obtain a proper title from the Department of Motor Vehicles. When Oakes returned later that day to pick up the car, he commented to plaintiff about the many single women living in the apartment complex. He stated that he understood the women's “situation” and then offered plaintiff money to have sex with him. During the next several days, Oakes called plaintiff twenty times.

¶ 4. Oakes returned to plaintiff's apartment, asking about the vehicle title. He then told plaintiff that he would pay her $200 to have sex with him. Plaintiff told Oakes that she “wasn't like that.” Oakes continued telling her that he knew she needed money and that he would pay her to have sex with him. Plaintiff told Oakes to leave, and he eventually did. Plaintiff reported Oakes's behavior to police.

¶ 5. The next morning, plaintiff discovered Oakes inside her apartment. He had not been invited, he did not notify plaintiff ahead of time and did not knock. Oakes lunged at plaintiff. He grabbed her shirt and tried to pull it off. He said, “show me your tits.” He put his hand under plaintiff's shirt and touched her breasts. Plaintiff tried to get away from him, and Oakes grabbed her from behind. He restrained her, took both her arms with one hand, and got behind her. With his other hand, he pushed her head down and began grinding himself into her, simulating anal sex. He asked plaintiff if she would do it that way. Plaintiff believed that Oakes was about to rape her. Plaintiff finally broke free of Oakes's restraint. Oakes told her that when he came back, plaintiff would have sex with him for money.

¶ 6. The jury returned a verdict in plaintiff's favor on all three counts in her complaint and awarded her $30,000 in compensatory damages. During the secondphase of the trial, plaintiff introduced evidence of Oakes's prior convictions for rape, attempted rape, and two violations of probation. The evidence also included an affidavit from an undercover police officer recounting the details underlying the 1977 attempted rape charge. Additionally, plaintiff introduced an affidavit from Oakes's attorney in one of the criminal cases. The attorney recounted that Oakes had a 1974 conviction for rape, for which he was placed on probation; and a 1977 attempted rape conviction, for which he was again placed on probation. He averred that Oakes was discharged from probation in both cases in July 1983. Finally, plaintiff introduced an inventory of Oakes's estate. Defendant presented evidence from the special administrator of the estate, who testified about expenses that the estate had incurred as well as his belief about the salability of the estate's real property. The jury awarded plaintiff $150,000 in punitive damages. Defendant appealed.

¶ 7. During the pendency of the proceedings described above, defendant sought a license from the probate court to sell the real property that plaintiff had attached. At a hearing on the motion, the probate court apparently asked plaintiff, at the estate's request, to explain why her claim was entitled to priority over administrative expenses. Plaintiff responded that this issue was not properly before the probate court, but that her claim deserved priority because it was secured by an attachment. In a February 2012 order, the probate court concluded that plaintiff's claim was not entitled to priority over administrative expenses. It reasoned that, under 14 V.S.A. § 1417, attachments secured subsequent to a defendant's death could not be executed upon. In a separate order, the court denied defendant's request for a license to sell real estate because the potential buyers were Oakes's personal friends and the sale price might be below fair market value. No appeals were taken from these orders.

¶ 8. In June 2012, defendant filed another motion to sell real estate in the probate court. Defendant also filed a “motion to clarify that attachment is void” in the superior court, based on the probate court's earlier ruling. Defendant maintained that the superior court could address this motion even though the case was on appeal. Plaintiff opposed the motion. The superior court denied defendant's request, finding that none of its prior orders had voided the writ of attachment nor would the court void, strike, or otherwise vacate the April 2010 writ of attachment while the case was on appeal. Defendant appealed from this order, and the appeals were consolidated in this Court.

¶ 9. Meanwhile, in July 2012, the probate court granted defendant a license to sell real estate. The superior court subsequently allowed defendant to deposit $259,806 of the sale proceeds with the court as substitute collateral for the attachment. The court denied defendant's request that the money be deposited with the probate court.

¶ 10. With this procedural history in mind, we turn to the merits. We begin with defendant's assertion that the court erred in admitting evidence of Oakes's prior convictions during the punitive damages phase of the trial. Defendant maintains that these convictions, which date from 1974 and 1977, were not relevant under Vermont Rule of Evidence 401 and were propensity evidence barred by Rule 404(b).

¶ 11. It does not appear that defendant raised a Rule 401 argument below. Even assuming that both of defendant's evidentiary arguments were preserved, however, we find no error. See Sweet v. Roy, 173 Vt. 418, 434, 801 A.2d 694, 706 (2002)(emphasizing that trial courts have wide discretion in ruling on the admissibility of evidence and that its rulings will not be reversed absent abuse of discretion). As discussed below, the evidence was relevant to the jury's assessment of the reprehensibility of Oakes's conduct, and its admission did not violate Rule 404(b).

¶ 12. To be entitled to punitive damages, plaintiff needed to prove two essential elements: (1) wrongful conduct that is outrageously reprehensible; and (2) malice. Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc., 2010 VT 33, ¶ 18, 187 Vt. 541, 996 A.2d 1167. In assessing the reprehensibility of a defendant's actions, a jury may consider whether “the conduct involved repeated actions or was an isolated incident.” Shahi v. Madden, 2008 VT 25, ¶ 26, 183 Vt. 320, 949 A.2d 1022 (observing that degree of reprehensibility of defendant's conduct is the “most important indicium of the reasonableness of a punitive damages award” (quotations omitted)). As the U.S. Supreme Court explained:

Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law. Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance.

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576–77, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (citation omitted). This language is consistent with prior holdings of the U.S. Supreme Court and of this Court. See, e.g., TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n. 28, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (indicating that “the existence and frequency of similar past conduct” is a relevant consideration in assessing punitive damages (quotation omitted)); Sweet, 173 Vt. at 440–41, 801 A.2d at 710–11 (citing Gore, 517 U.S. at 576–77, 116 S.Ct. 1589, and finding prior bad act evidence relevant and admissible on whether to award punitive damages and on amount of any punitive damages, and citing other cases so holding).

¶ 13. Defendant argues that Gore and Sweet are distinguishable. According to defendant, in both cases, the courts were looking at ongoing conduct that continued to the time of the wrong to the plaintiffs. Defendant also asserts that both cases involve vicarious liability where a legal person...