L'ESPERANCE v. Benware

• Decision Date: 02 May 2003
• Docket Number: No. 01-404.,01-404.
• Citation: 830 A.2d 675
• Court: Vermont Supreme Court
• Parties: Cheryl L'ESPERANCE, Matthew and Kyle L'Esperance, Scott and Daryl Simpson v. Wayne BENWARE and Sandra Lebo.

830 A.2d 675

Cheryl L'ESPERANCE, Matthew and Kyle L'Esperance, Scott and Daryl Simpson v. Wayne BENWARE and Sandra Lebo.

No. 01-404.

Supreme Court of Vermont.

May 2, 2003.

Mary C. Welford of Witten Woolmington Bongartz Campbell & Boepple, P.C., Manchester Center, for Plaintiffs-Appellees.

William J. Blake of Kiel Ellis & Boxer, Springfield, for Defendants-Appellants.

John J. McCullough and Stephen Norman, Vermont Legal Aid, Inc., Montpelier, for Amicus Curiae Vermont Tenants, Inc./ CVOEO.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

¶ 1. In this appeal of a jury verdict awarding damages to plaintiff-tenants, defendant-landlord claims (1) the evidence was insufficient to support the jury's finding that landlord was negligent in failing to provide plaintiff-tenants with safe drinking water; (2) the trial court erred in concluding that landlord was liable to plaintiff-tenants under the Consumer Fraud Act for renting her property in violation of the law; (3) the jury's award of exemplary damages was erroneous because it was unsupported by the evidence; and (4) the trial court erred in awarding attorney's fees to plaintiffs. We affirm.

¶ 2. In February 1996, plaintiff-tenants, Cheryl L'Esperance and her four children, Matthew L'Esperance, Kyle L'Esperance, Scott Simpson II, and Daryl Simpson began renting a house in Shrewsbury, Vermont from the owner, Eva Benware Kinney.² Plaintiffs claim they encountered a number of problems with the property. They allege that the heat was inadequate, the water was not working properly, the foundation appeared to be deteriorating, and the heat and electric bills were extraordinarily high. In March 1996, plaintiffs became ill with cramping, diarrhea, and vomiting. At the advice of her doctor, Cheryl L'Esperance contacted the Shrewsbury town health officer to have the water tested for contamination.

¶ 3. In April, the town health officer sent a water sample taken from the house to the Vermont Department of Health laboratory. The sample was found to contain E. coli bacteria. The town health officer requested the Vermont Department of Labor and Industry to inspect the property. On April 26, 1996, a Department inspector did so and ordered that the house be vacated by April 29 due to electrical problems and structural deficiencies, including an unsound foundation, a cracked and unsupported carrier beam, and the potential failure of a support column. Cheryl L'Esperance moved into a motel with her children until they could find other housing. In early May 1996, plaintiffs were treated for giardiasis.

¶ 4. In July 1998, plaintiffs filed a complaint against landlord alleging: (1) violation of the rental housing health code; (2) breach of express and implied warranties of habitability; (3) consumer fraud; (4) breach of the covenant of quiet enjoyment; (5) intentional infliction of emotional distress; (6) common law fraud; (7) failure to return a security deposit; and (8) negligence. Prior to trial, the court granted summary judgment for landlord on the rental housing health code and warranty of habitability claims. The court granted summary judgment for plaintiffs on the claims of landlord's liability for violation of the Consumer Fraud Act and for failure to return a security deposit, but left for trial the issue of damages on each claim. Before trial, plaintiffs voluntarily dismissed their claims for breach of the covenant of quiet enjoyment, intentional infliction of emotional distress, and common law fraud.

¶ 5. The remaining claims regarding negligence, and damages for consumer fraud and failure to return a security deposit, were tried before a jury in June 2001. The jury found landlord negligent, and awarded plaintiffs a total of $5000 in compensatory damages. With respect to the consumer fraud claim, the jury awarded plaintiffs $1200 in compensatory damages and $3600 in exemplary damages. The jury found that the value of the security deposit was $400, but declined to award any damages for willfully withholding the deposit.

¶ 6. Landlord filed post-trial motions requesting the court to grant judgment notwithstanding the verdict pursuant to V.R.C.P. 50(b) or to grant a new trial or to alter or amend judgment pursuant to V.R.C.P. 59. The court denied these motions. Following the court's denial of landlord's motions, the court held a hearing on plaintiffs' petition for attorney's fees, costs and interest. On September 28, 2001, the court awarded plaintiffs $33,315.69 in attorney's fees, costs, and prejudgment interest. A final judgment order of $43,736.69, based on the jury's verdict, post-judgment attorney's fees, and the court's September 28 award was entered on October 23, 2001.

¶ 7. On appeal, landlord asserts: (1) that the jury verdict on plaintiffs' negligence claim is not supported by the evidence and the trial court committed reversible error in denying landlord a judgment notwithstanding the verdict or alternatively granting landlord a new trial; (2) that the trial court committed reversible error by granting judgment in favor of plaintiffs on liability under the Consumer Fraud Act instead of submitting the issue to the jury; (3) that the jury verdict on exemplary damages under the Consumer Fraud Act was unsupported by the evidence; and (4) that the trial court erred in awarding attorney's fees to plaintiffs because plaintiffs' entitlement to the fees is limited to the consumer fraud claim and the trial court failed to reduce the fee award based on plaintiffs' "limited success" in the case. We address each argument in turn.

I. Negligence Claim

¶ 8. Landlord's assertion of error with respect to plaintiffs' negligence claim is predicated on the argument that — even viewing evidence in the light most favorable to plaintiffs — there was insufficient evidence to fairly and reasonably support a jury verdict that landlord had breached her duty to provide a safe and potable water supply and that the breach was the proximate cause of the injuries suffered by plaintiffs. We disagree.

¶ 9. On appeal, we must determine whether the "result reached by the jury is sound in law on the evidence produced." Murphy v. Stowe Club Highlands, 171 Vt. 144, 154, 761 A.2d 688, 696 (2000). Viewing the evidence in the light most favorable to the nonmoving party, and excluding the effects of any modifying evidence, this Court will affirm the denial of a motion for judgment as a matter of law "if any evidence fairly or reasonably supports" the nonmoving party's claim. Haynes v. Golub Corp., 166 Vt. 228, 233, 692 A.2d 377, 380 (1997).

¶ 10. Viewing the evidence in the light most favorable to the nonmoving party, the evidence showed that the water had been contaminated in the past and that landlord had knowledge of the possibility of contamination based on past experiences with the water supply at the property. For example, landlord's daughter, Sandra Lebo, testified that a spring across the road from the property has supplied the water to the rental unit for the entire time her family owned the property, from the mid-1950s to the present. She also said that the water had been contaminated before and that Ms. Kinney had added Clorox in an attempt to remedy the situation. Plaintiff testified as to landlord's notice of contamination problems, stating, "I recall [landlord] saying that she has had past comments from the health inspectors on what to do and she basically — basically said didn't [sic] believe them." Landlord's daughter testified that landlord never treated the water during the time that plaintiffs lived at the property. The town health officer testified that a sample of drinking water from the property showed the presence of E. coli bacteria, which the Vermont Department of Health Laboratory identified as posing a serious health concern. Finally, the jury heard undisputed medical testimony that plaintiffs' sickness was related to the presence of bacteria in the drinking water.

¶ 11. Based on our review of the record, the evidence presented fairly and reasonably supported plaintiffs' claim, the jury verdict was sound, and therefore the trial court properly denied landlord's motion.

II. Consumer Fraud Liability

¶ 12. Prior to trial, the trial court granted summary judgment to plaintiffs on their claim under the Consumer Fraud Act, 9 V.S.A. §§ 2451-2480g. Landlord moved at trial for reconsideration of the court's summary judgment order and for judgment as a matter of law pursuant to V.R.C.P. 50. The court denied these motions and submitted the case to the jury solely for a determination of damages under the Consumer Fraud Act. Following trial, landlord filed motions for judgment as a matter of law pursuant to V.R.C.P. 50 and/or to alter or amend the judgment pursuant to V.R.C.P. 59 and/or for a new trial. The court denied these motions. Landlord argues that the trial court committed reversible error by granting judgment in favor of plaintiffs on the consumer fraud claim and by denying landlord's post-trial motions. We disagree.

¶ 13. We review an appeal from summary judgment applying the same standard as the trial court: requiring the moving party to prove that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. V.R.C.P. 56(c); White v. Quechee Lakes Landowners' Ass'n, Inc., 170 Vt. 25, 28, 742 A.2d 734, 736 (1999). The nonmoving party must receive the benefit of all reasonable doubts and inferences, although contrary allegations must be "supported by specific facts sufficient to create a genuine issue of material fact." Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996).

¶ 14. A landlord can commit a deceptive act prohibited by § 2453 of Title 9 when a landlord rents property to a tenant that is in violation of law. Bisson v. Ward, 160 Vt. 343, 351, 628 A.2d 1256, 1261 (1993). Plaintiffs argued that landlord rented the Shrewsbury property to them when it...