JW, LLC v. Ayer

• Decision Date: 18 July 2014
• Docket Number: No. 13–089.,13–089.
• Court: Vermont Supreme Court
• Parties: JW, LLC v. Brian M. AYER and Debbie Martell.

101 A.3d 906

2014 VT 71

JW, LLC

v.Brian M. AYER and Debbie Martell.

No. 13–089.

Supreme Court of Vermont.

July 18, 2014.

Christopher A. Micciche, Burlington, for Plaintiff–Appellant.

Brian M. Ayer, Pro Se, Grand Isle, for Defendants–Appellees.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and MORSE, J. (Ret.), Specially Assigned.

Opinion

DOOLEY, J.

¶ 1. This landlord-tenant dispute concerns the status of tenants' personal property, which landlord¹ cleared from the leased premises at the time a writ of possession was executed. The trial court concluded that landlord did not rightfully have possession of the property and ordered landlord to return it to tenant. Landlord argues that pursuant to statute he is entitled to retain the property, and, in the alternative, the court erred in denying his request for a writ of attachment for the property. We reverse and remand.

¶ 2. The trial court found the following facts. In February 2005, tenants began leasing a single-family home from landlord. Tenants resided in the home with their children and animals, including dogs and chickens. At the time tenants moved in, the house was relatively new and in excellent condition. The monthly rent was $1300. Tenants paid no rent in March and April 2012. They paid rent in May 2012 plus $300 in arrears, but made no further rental payments.

¶ 3. Landlord filed for eviction in July 2012. The court issued a rent escrow order. Tenants made only a partial rental payment in August 2012, and the court issued an order for a writ of possession. The writ issued on August 10, 2012 and was served on August 22, 2012. The writ stated that tenants had to vacate the premises by midnight on September 6, 2012. On the return of service, the sheriff noted that he had explained the writ and tenants had no questions, and, although tenants refused to take the paperwork, the sheriff left it at the residence.

¶ 4. The writ was executed on September 7, 2012 by the sheriff, who removed tenants from the home. Landlord was present with his lawyer. The house and surrounding area were filled with tenants' personal property, including auto technician work tools belonging to tenant Brian Ayer. Landlord hired a moving crew to clear away tenants' personal property. Some items were discarded as trash, and other property was kept by landlord in various storage facilities. The home required extensive cleaning and repairs to make it habitable again.

¶ 5. Landlord denied tenant further access to the residence to claim property. Landlord also denied tenant access to the items

that landlord had retained. Landlord claimed that the justification for retaining tenants' personal property was based on two statutes. The first relates to property left in an abandoned or vacated dwelling unit, 9 V.S.A. § 4462(c), and states:

If any property, except trash, garbage, or refuse, is unclaimed by a tenant who has abandoned a dwelling unit, the landlord shall give written notice to the tenant mailed to the tenant's last known address that the landlord intends to dispose of the property after 60 days if the tenant has not claimed the property and paid any reasonable storage and other fees incurred by the landlord. The landlord shall place the property in a safe, dry, secured location, but may dispose of any trash, garbage, or refuse left by the tenant. The tenant may claim the property by providing the landlord with the following within 60 days after the date of the notice:

(1) A reasonable written description of the property; and

(2) Payment of the fair and reasonable cost of storage and any related reasonable expenses incurred by the landlord.

If the tenant does not claim the property within the required time, the property shall become the property of the landlord. If the tenant claims the property within the required time, the landlord shall immediately make the property available to the tenant at a reasonable place and the tenant shall take possession of the property at that time and place.

The second relevant statute is about property remaining on property following eviction, and states in part: “A landlord may dispose of any personal property remaining in a dwelling unit or leased premises without notice or liability to the tenant or owner of the personal property: (1) 15 days after a writ of possession is served pursuant to this chapter.” 12 V.S.A. § 4854a(a).

¶ 6. Landlord initially viewed tenants' personal items as abandoned property under 9 V.S.A. § 4462(c), and demanded that within sixty days tenants pay $10,000 for the fair and reasonable cost of removal and storage of the property. Tenants responded by seeking a court order requiring landlord to release their property.

Tenants argued that landlord's moving and storage costs were unreasonably high, and they offered $2700 for the cost of storage. The court held a hearing on the motion at which both landlord and tenants testified. At the close of the hearing, the court concluded that the property was not “abandoned” within the meaning of the statute and granted tenants' motion for return of the property. The court signed an order directing landlord to release the property to tenant. Landlord responded by releasing some, but not all of tenants' property, and by moving for a writ of attachment.

¶ 7. The court consolidated the request for a writ of attachment with the final hearing on damages. At the hearing, landlord and tenant Ayer testified concerning the property items that had not been returned to tenants. This list included a yellow tool box with tenant Ayer's automotive tools, some carpentry tools, a car dolly, an all-terrain vehicle, a muzzle loader in a gun case, a 5–drawer tool cart, and a small tool box. Tenant Ayer testified at the hearing that the automotive tools were necessary for him to do his auto-mechanic job.

¶ 8. At the hearing, landlord for the first time argued that he could legally retain the property under 12 V.S.A. § 4854a, which became effective before the writ of possession was filed in this case. 2011, No. 137 (Adj.Sess.), § 11 (effective May 14, 2012). Landlord argued that because tenants did not remove their property within fifteen days after service of the writ of possession, he was free to do whatever he wanted with the property including keeping it.

¶ 9. The court issued a final order the same day. The court concluded that landlord was entitled to damages for back rent, costs to repair and clean the property, and attorney's fees. Subtracting amounts tenant paid as a security deposit and for rent escrow, the court granted landlord judgment in the amount of $31,721. As to the personal property, the court rejected landlord's contention that once fifteen days had passed from service of the writ of possession, landlord was entitled to retain tenants' personal property remaining on the leased premises. The court concluded that § 4854a did not confer on landlord ownership of tenants' personal property that remained in the dwelling. The court construed the section as dealing with “the disposal of trash

and valueless property.” The court explained its view that § 4854a was

limited to shielding the landlord from “liability to the tenant or owner of the personal property” if he or she disposes of it after 15 days. It does not confer ownership. If § 4854a were to confer ownership of any property remaining on the premises 15 days after service of the writ, it would effectively repeal 9 V.S.A. § 4462 which deals with unclaimed property “except trash, garbage or refuse” remaining in a dwelling unit “no longer occupied as a full-time residence.”

The court explained if a landlord evicts a tenant and there is personal property that is not trash, the landlord is still required to make reasonable efforts to find out what tenant plans to do with the property and to store the property for sixty days. The court found that in this case because tenant had demanded the property at the time of eviction and before landlord incurred any moving or storage costs, tenant was entitled to have the personal property without any storage payment. The court explained that landlord could not seize tenants' personal property to satisfy an unrelated debt—the money owed to landlord for the unpaid rent and damage to the property—without first obtaining approval for the action by seeking a writ of attachment or other order. The court ordered that all personal property be returned to tenant within seventy-two hours.

¶ 10. Landlord filed a notice of appeal and moved to stay the order requiring the return of property pending appeal. The court granted the stay, subject to tenants' right to access the property for purposes of inspection, appraisal, and preparing an inventory.

¶ 11. The main issue on appeal is the proper construction of 12 V.S.A. § 4854a. This is a question of law that we review de novo. Chayer v. Ethan Allen, Inc., 2008 VT 45, ¶ 9, 183 Vt. 439, 954 A.2d 783. “The goal in interpreting statutes is to effectuate legislative intent.” Vt. Human Rights Comm'n v. State, Agency of Transp., 2012 VT 45, ¶ 5, 191 Vt. 485, 49 A.3d 149. To determine this intent, this Court first looks at the statute's plain meaning and where the language is unambiguous, it is enforced according to its express meaning. Id. If the meaning of the language is ambiguous, “we determine its intent from a consideration of the whole and every part of the statute, the subject matter, the effects and consequences

, and the reason and spirit of the law.” Ran–Mar, Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt. 26, 912 A.2d 984 (quotation omitted).

¶ 12. Landlord argues that the court misconstrued the statutory scheme. Landlord contends that while 9 V.S.A. § 4462 addresses a landlord's responsibilities concerning property left behind when a tenant voluntarily departs from a rental unit, it does not provide instruction concerning a landlord's rights or responsibilities as to property remaining in a rental unit after a tenant is removed through an ejectment proceeding. According to...