Ondovchik Family Ltd. P'ship v. Agency Of Transp.

Decision Date30 April 2010
Docket NumberNo. 09-182.,09-182.
Citation2010 VT 35,996 A.2d 1179
PartiesONDOVCHIK FAMILY LIMITED PARTNERSHIPv.AGENCY OF TRANSPORTATION.
CourtVermont Supreme Court

996 A.2d 1179
2010 VT 35

ONDOVCHIK FAMILY LIMITED PARTNERSHIP
v.
AGENCY OF TRANSPORTATION.

No. 09-182.

Supreme Court of Vermont.

April 30, 2010.


996 A.2d 1180
Christina A. Jenson of Lisman, Webster & Leckerling, P.C., Burlington, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and Daniel D. Dutcher, Assistant Attorney General, Montpelier, for Defendant-Appellee.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and CRAWFORD, Supr. J., Specially Assigned.

¶ 1. REIBER, C.J.

Landowner Ondovchik Family Limited Partnership appeals from the trial court's

996 A.2d 1181
dismissal of its lawsuit against defendant Vermont Agency of Transportation. Landowner owns a building in Shelburne. As a result of defendant's recent expansion of Route 7, landowner's building is less than eight feet from that highway. This lawsuit stems from alleged damage to that building from snow throw and water runoff from defendant's snowplowing of the highway. In its amended complaint, landowner presented two claims: (1) trespass, based on the theory that defendant (through snow throw and water runoff) is physically invading landowner's property; and (2) inverse condemnation, based on the theory that defendant has physically taken those parts of the property hit by snow throw and water runoff and that landowner is therefore owed compensation. The trial court rejected both theories and dismissed the case. We affirm.

¶ 2. The facts of this case are largely undisputed. That said, because this appeal arises out of defendant's successful motion to dismiss, if there are any facts in dispute, “we must assume as true all factual allegations” pleaded by landowner. Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997).

¶ 3. This dispute goes back many years. In 2000, defendant filed a necessity petition to condemn land to expand Route 7 in Shelburne-an expansion that landowner opposed. The trial court granted the necessity petition, and we affirmed that decision in 2002. In re S. Burlington-Shelburne Highway Project, 174 Vt. 604, 817 A.2d 49 (2002) (mem.). Defendant then undertook condemnation proceedings of certain land, including 0.13 acres of landowner's land. Landowner received $43,400 in compensation. In the next round of litigation before this Court, landowner sought additional compensation for various impacts to landowner's property that defendant had not considered, including damage to landowner's nearby building from snow throw and water runoff. In re S. Burlington/Shelburne Highway ( Ondovchik II), 2008 VT 68, 184 Vt. 553, 956 A.2d 1121 (mem.). At the time, no snow throw or water runoff had occurred because the highway had not yet been expanded. Under 19 V.S.A. § 501(2), landowners who have a portion of their property condemned during eminent domain proceedings can collect additional compensation for any “direct and proximate decrease in the value of the remaining property.” We interpreted this statute in Ondovchik II, where we held that “damages resulting from alleged future harm to landowners' property do not directly and proximately result from the taking of plaintiffs' property and are not compensable.” 2008 VT 68, ¶ 5, 184 Vt. 553, 956 A.2d 1121.

¶ 4. In the current dispute, the highway expansion has occurred, and landowner now makes additional allegations, which, as noted, we assume to be true. Amiot, 166 Vt. at 291, 693 A.2d at 677. Specifically, landowner alleges that damage to its building is no longer merely an “alleged future harm,” but has in fact come to pass now that the highway has been expanded to within eight feet of the building. Defendant owns a five-foot-wide sidewalk within those eight feet. Landowner alleges that defendant's snowplows propel snow and water runoff across the sidewalk and onto landowner's building. Landowner also alleges that the water runoff is contaminated.

¶ 5. On appeal, landowner raises three arguments for overturning the trial court's dismissal of the case. First, landowner argues that the trial court made a procedural error when it failed to notify landowner of the proposed grounds for dismissal, thereby unfairly depriving landowner of an opportunity to respond in

996 A.2d 1182
writing or at a hearing. Second, landowner argues that the trial court erred in dismissing its trespass claim. Third, landowner argues that the trial court erred in dismissing its inverse condemnation claim. According to landowner, each of its theories of liability suffices to meet the “exceedingly low” threshold for surviving a motion to dismiss Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.) (quotation omitted). We hold that all three of these arguments are meritless.

¶ 6. Landowner's first argument is that the trial court's decision must be reversed because the court never notified landowner of the proposed legal grounds for dismissal. Landowner is correct that defendant's motion to dismiss failed to raise the issues that the trial court ultimately found dispositive. Defendant's motion made only two legal arguments: (1) no other courts have found liability for snowplowing; and (2) defendant has sovereign immunity. The trial court ultimately dismissed the case on different grounds. Nevertheless, we find no error in the trial court's actions.

¶ 7. Landowner's argument relies on Huminski v. Lavoie, where we stated that “before the trial court may dismiss a complaint for failure to state a cause of action on its own motion, the court must notify the parties of the proposed action, and afford an opportunity to address the asserted grounds for dismissal.” 173 Vt. 517, 519, 787 A.2d 489, 492 (2001) (mem.) (citing Town of Westminster v. Hall, 139 Vt. 248, 250, 428 A.2d 1095, 1096 (1981)). Landowner reads too much into Huminski. The rationale behind Huminski was that “although a claim may be entirely spurious on its face, the court cannot know, without hearing the parties, whether the plaintiff may be able to amend the complaint sufficiently to state a claim entitling the plaintiff to relief.” Id. But the facts in this case are simple and undisputed, and the trial court, citing Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 955 A.2d 1082, explicitly “accepted as true” all of landowner's factual allegations. Indeed, when addressing landowner's trespass claim, the trial court stated that “no facts or circumstances, however differently alleged, would entitle Plaintiff to any legal relief.”

¶ 8. This claim of procedural error essentially boils down to a complaint that the trial court deprived landowner's counsel of a fair opportunity to argue the case. Though Huminski recognized that plaintiffs are often in a superior position to address factual deficiencies in a complaint, 173 Vt. at 519, 787 A.2d at 492, we do not read that decision as disturbing the more general notion that courts are in the best position to resolve disputed legal issues. Cf., e.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”). It was therefore not error here for the trial court to address legal issues without first notifying landowner.

¶ 9. Landowner next argues that the trial court erred in dismissing the trespass claim. Landowner alleges that defendant (through snow throw and water runoff) is physically invading landowner's property. Landowner is correct that a trespass does not always require personal entry onto land, since a “tangible invasion of their property” is enough to make out a prima facie case for trespass. John Larkin, Inc. v. Marceau, 2008 VT 61, ¶ 9, 184 Vt. 207, 959 A.2d 551. Thus, moving snow onto another's property might be a trespass.

996 A.2d 1183
Further, landowner does not need to allege damages to make out a prima facie case for trespassing. See id. (holding that claim can be made for invasion of property without proof of any other injury). Nevertheless, in this case we hold that defendant's actions were privileged and that landowner's trespass claim was therefore properly dismissed.

¶ 10. Although the bar for bringing a trespass claim is low, mere entry onto another's land does not in itself constitute a trespass because such entry can be privileged: “Trespass involves the unprivileged entry on to the land in possession of another. By definition, trespass involves conduct that the trespasser has no right to engage in ....” Wild v. Brooks, 2004 VT 74, ¶ 17, 177 Vt. 171, 862 A.2d 225 (emphases added) (citation omitted).

¶ 11. Defendant argues on appeal, and...

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