Fritzeen v. TRUDELL CONSULTING ENGINEERS
| Decision Date | 06 April 2000 |
| Docket Number | No. 98-554.,98-554. |
| Citation | 751 A.2d 293 |
| Court | Vermont Supreme Court |
| Parties | Eric and Louise FRITZEEN and William and Constance Coates v. TRUDELL CONSULTING ENGINEERS, INC., and James Tyler Hart. |
Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Plaintiffs Eric and Louise Fritzeen, et al., appeal a Chittenden Superior Court summary judgment dismissal of their negligence and breach of contract lawsuit against defendants Trudell Consulting Engineers, Inc., et al. The court concluded that Trudell's engineering work was not a factor in the decision of the Water Resources Board to reverse the grant of a wastewater permit, and thus Trudell's conduct could not be a proximate cause of the Fritzeens' alleged damages. We believe that the court misconstrued the Board's decision and that whether Trudell's conduct was a proximate cause of the alleged harm is a genuine issue of material fact. Accordingly, we reverse.
The factual and procedural history of this case is long and complicated. In 1991, the Fritzeens acquired a thirty-four acre parcel of land in Colchester from Roger Villemaire with the intent to develop it into a multi-unit condominium project. Villemaire had secured a wastewater permit from the Agency of Natural Resources (ANR) for a mound septic system, designed by Trudell, for a nine unit project. However, this permit was conditioned upon obtaining an easement from a neighbor. The Fritzeens, after purchasing the parcel from Villemaire, were unable to acquire the easement. They hired Trudell to design a new on-site septic system, rather than a mound system, to obtain an ANR permit. According to the Fritzeens, Trudell assured them that its design was the only viable plan and actively discouraged consideration of any alternative septic sites. This site was near the property of neighbors, the DesLauriers. With the help of legal counsel, the Fritzeens obtained a permit. However, the DesLauriers opposed it and filed an out-of-time revocation petition with the Department of Environmental Conservation (DEC).
A two-day adversarial hearing was held before the DEC. The Fritzeens and the DesLauriers were represented by counsel. Defendant James Hart and DEC Assistant Regional Engineer Marsha Thompson testified at the hearing. In July 1993, the DEC Commissioner, referring often to Hart and Thompson's testimony, denied the neighbors' revocation petition. The Commissioner concluded that the DesLauriers did not produce sufficient evidence on any of their five appellate issues, and thus could not establish that the permit failed to comply with the Environmental Protection Rules (EPRs) or that the Fritzeens provided false or misleading information in their application to the DEC.
The DesLauriers then appealed to the Water Resources Board (Board). Again, both the Fritzeens and the DesLauriers were represented by counsel, though the Fritzeens' attorney was not the same attorney who had represented them before the ANR and the DEC. In June 1994, the Board reversed the Commissioner's decision.1 The Fritzeens, through a third attorney, subsequently filed motions to correct the Board's decision and to supplement the record of appeal. Specifically, these motions argued that important evidence, at least some of which includes Trudell's work, was not included in the record before the Board when it rendered its decision. In September 1994, the Board denied the Fritzeens' motions.
The Fritzeens subsequently retained another engineering firm to design an alternative system with different septic sites on the parcel. This alternative plan was approved by the ANR without objection from the DesLauriers, and installed.
The Fritzeens then brought this lawsuit in superior court alleging negligence and breach of contract against Trudell, claiming as damages the costs of subsequent design and construction of a new wastewater system, as well as lost profits. After discovery by both sides, Trudell moved for summary judgment, arguing that (1) the Fritzeens' predecessor attorneys were negligent in handling the proceedings before the Board and this negligence constituted an efficient intervening cause of the Fritzeens' damages; (2) the Fritzeens' predecessor attorneys' alleged negligence was imputable to the Fritzeens and that such imputed negligence exceeded that of Trudell; and (3) the Fritzeens assumed the risk of a successful revocation action by the DesLauriers when they purchased the property and authorized a septic design different from the one previously done by Trudell for Villemaire.
The court granted Trudell's summary judgment motion, concluding that the only reasonable conclusion, based upon the evidence, was that Trudell's conduct was not the proximate cause of the Fritzeens' damages. This appeal followed.
We review a grant of summary judgment with the same standard as the trial court. See In re Margaret Susan P., 169 Vt. 252, 257, 733 A.2d 38, 43 (1999). Summary judgment is appropriate only where, taking the allegations of the non-moving party as true, it is evident that there exist no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 477, 708 A.2d 924, 926 (1998). "Summary judgment is not a substitute for a determination on the merits, so long as evidence has been presented which creates an issue of material fact, no matter what view the court may take of the relative weight of that evidence." Vermont Envtl. Bd. v. Chickering, 155 Vt. 308, 319, 583 A.2d 607, 613-14 (1990). It is not the function of the trial court to find facts on a motion for summary judgment, even if the record appears to lean strongly in one direction. See Booska v. Hubbard Ins. Agency, Inc., 160 Vt. 305, 309, 627 A.2d 333, 335 (1993).
The salient material fact in this dispute is whether Trudell's work was a cause of the Board's decision to reverse the Commissioner's decision. The Fritzeens' theory of the case is that it was Trudell's negligence in designing the wastewater system that caused the alleged harm. Trudell counters that in reversing the Commissioner's...
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