Moyers v. Poon

• Decision Date: 18 June 2021
• Docket Number: No. 2020-220,2020-220
• Citation: 2021 VT 46
• Court: Vermont Supreme Court
• Parties: John Moyers v. Sheun Lai Poon and Brenda Lee Poon

2021 VT 46

John Moyers v. Sheun Lai Poon and Brenda Lee Poon

No. 2020-220

Supreme Court of Vermont

April Term, 2021

June 18, 2021

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Addison Unit, Civil Division

Alison S. Arms, J.

Andrew Jackson, Bristol, for Plaintiff-Appellant.

Elizabeth M. Demas and Peter L. Potts of Clarke Demas & Baker, PLLC, Burlington, for Defendants-Appellees.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. EATON, J. Plaintiff appeals from the trial court's decision in this long-running property dispute. He raises numerous arguments. We reverse and remand the court's dismissal of plaintiff's claim for contribution under 19 V.S.A. § 2702 and affirm the remainder of the court's decision.

¶ 2. Defendants own a building on a lot at 17 Main Street in Bristol, Vermont. They have fenced in a small parcel behind their building, which they use to store materials in service of their building. Plaintiff claims to own a driveway that runs to the rear of defendants' building, which defendants use for deliveries, as well as a parking lot behind defendants' building where the small fenced-in parcel is located.

I. Prior Litigation

¶ 3. This is the parties' third time before this Court. See Moyers v. Poon, 2018 VT 27, 185 A.3d 586, 207 Vt. 37 [Poon II]; Moyers v. Poon, No. 2016-432, 2017 WL 2963438 (Vt. June 26, 2017) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo16-432_0.pdf [https://perma.cc/A9NB-BWYM] [Poon I]. Plaintiff initially sued defendants in 2014, claiming title to the "driveway along the side of defendants' commercial building" and the small parcel referenced above. Poon I, 2017 WL 2963438, at *1 n.1. Plaintiff alleged that defendants were trespassing by using "the driveway . . . for deliveries and also stor[ing] fuel tanks and waste containers on [his] land." Id. at *1. He also sought contribution from defendants for his costs in maintaining the driveway. Defendants counterclaimed, arguing that they had "a right to use the driveway and land behind their building for parking, access, delivery, storage, and other related commercial purposes" by virtue of a prescriptive easement for the driveway and through adverse possession with respect to the small parcel. Id.

¶ 4. Plaintiff later asserted as a matter of undisputed fact that defendants had a deeded right-of-access. The trial court "granted summary judgment to plaintiff on defendants' counterclaims for adverse possession and prescriptive easement, reserving judgment on the extent of any deeded right to access." Id. at *2. Plaintiff then moved to dismiss his claims for damages for trespass and contribution for driveway-maintenance costs without prejudice; defendants sought relief from judgment, asserting that they did not in fact have a deeded right-of-access. The court granted plaintiff's request and denied defendants' motion. It explained that a right-of-access was immaterial to its decision on defendants' counterclaims, which had failed for lack of proof. Ultimately, the court found that plaintiff had made a binding admission on the right-of-access issue and the source of that right was immaterial. It entered final judgment allowing defendants a "right of access for deliveries," but enjoining defendants "from any use of [p]laintiff's property other than for access for deliveries." Id. (quotation marks omitted).

¶ 5. On appeal, this Court affirmed the treatment of defendants' counterclaims but struck the grant of injunctive relief, finding it unwarranted in the absence of a trespass finding. We explained that "the court's summary judgment order was limited to defendants' claims of a prescriptive easement and adverse possession" and it "did not resolve plaintiff's claim of trespass," which required plaintiff "to show that defendants had intentionally entered or remained upon land in the possession of another without a privilege to do so." Id. at *6 (quotation omitted) (alteration omitted). The rejection of defendants' counterclaims, we explained, "did not amount to a showing that defendants had engaged in a continuous trespass or threat of continuous trespass." Id.

¶ 6. In Poon II, we determined that the trial court could not hold additional hearings on plaintiff's 2014 complaint because the case had not been remanded. 2018 VT 27, ¶ 10. We found that the doctrine of res judicata barred plaintiff from relitigating "an alleged trespass by [defendants] that was or could have been litigated" in the 2014 action. Id. ¶ 11. But, we explained, a "future claim seeking injunctive relief against an ongoing trespass, or the threat of one, would not be barred, nor would claims for damages for injuries which occurred after the previous case." Id. ¶ 12.

II. Current Suit

¶ 7. In May 2018, plaintiff filed the complaint at issue here. He claimed to own the property south of defendants' property line, and he argued that defendants were trespassing by storing items on his land. Plaintiff asserted that defendants knew that he wanted the items removed and, by refusing to do so, they were depriving him of the possession and use of his property. Plaintiff also asserted that defendants benefited from his ownership and maintenance of the driveway and they were required by 19 V.S.A. § 2702 to contribute rateably to his maintenance costs. Finally, plaintiff sought punitive damages based on his allegation that defendants were acting in bad faith.

¶ 8. Following a bench trial, the court concluded that while plaintiff proved that defendants did not own the disputed area, he failed to prove that he owned it. The court acknowledged that plaintiff's evidence regarding his ownership was uncontradicted but, for the reasons set forth below, it found plaintiff's evidence insufficient to meet his burden of proof. The court noted that neither party asked the court to quiet title.

¶ 9. The court credited the testimony of plaintiff's expert land surveyor, Donald Johnston, regarding defendants' southerly property line at 17 Main Street. The court discussed in detail how the land surveyor had supported his opinion by tracing the chain of title to the lands currently held by defendants and others in the vicinity of the disputed parcel. It found that various deeds established that the southernmost possible boundary of defendants' property was 64 feet, 7 inches, which was equidistant to the depth of the adjoining parcels on both sides and was essentially contiguous to the back wall of defendant's building.

¶ 10. The court contrasted this approach with the evidence plaintiff presented to support his claim of ownership. It found that plaintiff abandoned his careful chain-of-title proof after 1924. He did not establish the chain of title to the building he now owned, nor whether the boundaries of his lot were altered through subsequent conveyances. The court found that the boundaries of a third property at 11 Main Street might encompass the disputed area and noted that vague reference had been made throughout the hearing to plaintiff's ownership of 11 Main Street subsequent to prior owners known as Mack and Harmon.¹ But the chain of title to 11 Main Street to plaintiff was not proved at the hearing, nor did the evidence establish whether the boundaries of the 11 Main Street lot were altered through subsequent conveyances through the present.

¶ 11. The land surveyor opined that plaintiff owned the land south of defendants' boundary line (presumably including the disputed parcel) because there was a deed for the purchase of that land wherein Mack and Harmon sold the property to a limited liability company(LLC) controlled by plaintiff. Yet, the expert also testified that there were two possible boundary lines that established the boundary of the Mack and Harmon (now presumably plaintiff's land) to the south of defendants' property.

¶ 12. The land surveyor nonetheless testified that plaintiff owned all of the land behind a bank at 15 Main Street and behind defendants' lot at 17 Main Street and that there was a deed reflecting this conveyance. Yet plaintiff did not submit that critical deed at trial. Thus, while the court found the land surveyor to be credible, it rejected his conclusion on this point as unsupported by other evidence. It found that neither the deed itself nor the details of the deed were described. In essence, the basis of his expert opinion was not established. The court also could not reconcile Mr. Johnston's conclusion with his testimony that he could not determine the relevant boundary line of the Mack and Harmon property.

¶ 13. The court was unpersuaded by a quitclaim deed that plaintiff submitted reflecting a quitclaim of the property from an LLC owned by plaintiff to plaintiff personally. In the deed, plaintiff asserted that: (1) his LLC quitclaimed property to him; and (2) the property had been transferred to the LLC from Mack and Harmon by a deed that was referenced but not produced at trial and which purported to encompass the 11 Main Street property. As indicated above, the court found that the dimensions of 11 Main Street as of 2019 were not proved at trial, nor was it proved that plaintiff owned 11 Main Street. Thus, the court concluded, the scope of the property quitclaimed in the submitted deed was not established at trial.

¶ 14. The court found that the three pieces of evidence asserting that plaintiff owned the disputed parcel originated from plaintiff and plaintiff essentially asked the court to accept his word without more. Without evidence of his chain of title, as plaintiff's expert had shown he could do, the court deeme...