Fritzeen v. Gravel

• Decision Date: 23 May 2003
• Docket Number: No. 02-075.,02-075.
• Citation: 830 A.2d 49
• Court: Vermont Supreme Court
• Parties: Eric and Louise FRITZEEN and William and Constance B. Coates v. John GRAVEL, Esq.

830 A.2d 49

Eric and Louise FRITZEEN and William and Constance B. Coates
v.
John GRAVEL, Esq

No. 02-075.

Supreme Court of Vermont.

May 23, 2003.

830 A.2d 50

Present: AMESTOY, C.J., JOHNSON, SKOGLUND, JJ., and ERNEST W. GIBSON III, J. (Ret.), Specially Assigned

ENTRY ORDER

¶ 1. Plaintiffs Eric and Louise Fritzeen and William and Constance B. Coates appeal a decision of the Chittenden Superior Court granting summary judgment to defendant, attorney John Gravel. The trial court found that plaintiffs' claim for legal malpractice was barred by 12 V.S.A. § 511 ("A civil action ... shall be commenced within six years after the cause of action accrues and not thereafter."). Plaintiffs argue that the trial court erred in determining that the cause of action accrued before the conclusion of the appeal in the underlying proceeding. We affirm.

¶ 2. The trial court found the following undisputed facts. Attorney Gravel, defendant, represented plaintiffs from August 1993 to June 1994 in connection with an ongoing condominium development project. Plaintiffs had obtained a new wastewater permit in January 1992, which their neighbors opposed. The neighbors sought revocation of the permit in a hearing before the Agency of Natural Resources' Department of Environmental Conservation (the Department), and plaintiffs prevailed. Defendant assumed representation of plaintiffs when the neighbors appealed the decision of the Department to the Water Resources Board in August 1993.¹ On October 21, 1993, legal counsel to the Water Resources Board circulated to all parties a detailed list of the specific exhibits before the Board on appeal. The parties then had an opportunity to supplement the record with additional exhibits. The exhibits list on record did not include certain technical documentation that the Department had relied upon for its decision in support of plaintiffs' position. Defendant did not attempt to supplement the record with these documents on behalf of his clients.

¶ 3. On June 1, 1994, the Water Resources Board reversed the Department's decision and remanded the matter for further revocation proceedings because "the record does not fairly and reasonably support

830 A.2d 51

the ANR's conclusion[s]" that the wastewater disposal system met several requirements of the Environmental Protection Rules. One week later, defendant wrote a letter to plaintiffs in which he notified them of the outcome and identified four future courses of action. Attorney Liam Murphy then assumed representation of plaintiffs and, on June 16, 1994, filed a motion to correct the decision with the Water Resources Board

¶ 4. In July 1994, attorney Murphy filed plaintiffs' motion to supplement the record on appeal along with an attached affidavit from plaintiff Eric Fritzeen in which Fritzeen expressed his knowledge that defendant had not supplemented the file before the Water Resources Board with documents supportive of plaintiffs' position. Plaintiff Fritzeen's sworn statement included the following language:

At no time did [defendant] ever inform me of receipt of the October 1993 memorandum from the Board counsel which indicated that the Board record was limited to seven listed exhibits and that any party wishing to supplement the record would have to file a petition to the Board.... At the Board hearing on the revocation, a number of questions were asked by Board members about certain data and plans and [defendant] replied that such data was part of the file. I understood at that time the entire file was before the Water Resources Board.... Certain critical information and plans that are necessary for the Board to make a just decision on the complete record were omitted from the original exhibits and if I had known earlier that these were not a part of the Record, I would have petitioned the Board to include them.

At the hearing on the motions held in August 1994, attorney Murphy responded to the hearing officer's inquiry concerning "good reasons for failure to present" the additional evidence, see 3 V.S.A. § 815(b), by stating that "the prior lawyers in this case did an inadequate job in presenting. . . [and] that certainly may leave [plaintiffs] with a malpractice suit ... against [defendant,] the lawyer that represented him on appeal." The Board issued its written decision on September 14, 1994, denying plaintiffs' motions to correct the decision and supplement the record on appeal. Plaintiffs filed a notice of appeal to this Court, which was later dismissed by stipulation of the parties in December 1995.

¶ 5. On December 9, 1994, a year before the stipulated dismissal of the appeal, attorney Murphy wrote a letter to defendant Gravel, notifying him that plaintiffs were considering a malpractice action against defendant based on the omission of documents and the limited record presented on appeal to the Water Resources Board. Attorney Murphy explained in his letter that he "discovered the problem when [he] read the Water Resources Board decision and it stated that there was no evidence relating to the percolation test data in the record." He wrote that, after reviewing the record and finding it only contained limited exhibits, he immediately filed the motion to supplement the record on July 5, 1994.

¶ 6. Plaintiffs then waited until June 15, 2001 to file this action.² On January 18, 2002, the trial court granted summary judgment to defendant, finding that the action had accrued by December 9, 1994 at the latest and thus was barred by the six-year statute of limitations in 12 V.S.A. § 511. This appeal followed.

830 A.2d 52

¶ 7. We review a summary judgment...