Riley v. Dempsey
| Docket Number | 425-8-04 Wrcv |
| Decision Date | 05 January 2005 |
| Parties | HENRY D. RILEY, Plaintiff/Appellant v. KEVIN DEMPSEY, Defendant/Appellee |
| Court | Superior Court of Vermont |
DECISION ON APPEAL FROM SMALL CLAIMS COURT
Plaintiff Henry D. Riley appeals a small claims judgment in favor of the defendant, Kevin Dempsey. In a decision dated August 2 2004, Assistant Judge William M. Boardman issued a judgment in Mr. Dempsey's favor on Mr. Riley's claim, as well as a judgment for Mr. Dempsey on his counterclaim. Both parties appear pro se.
This case concerns Kevin Dempsey's rental of Henry Riley's house, beginning in September of 2000 and continuing until October of 2003. Mr. Riley filed his complaint on December 24, 2003, claiming that the Dempseys' dog and cat had caused extensive damage to Riley's house during the Dempseys' tenancy. Mr. Dempsey filed his answer and counterclaim on February 2, 2004, seeking a return of his security deposit plus a penalty for willful withholding under 9 V.S.A. § 4461(e).
The Small Claims Court held a hearing on May 26, 2004. Both parties testified, and they also presented testimony from witnesses Gregory Brown, Francine Capizzi, Alice Anderson John Bodnar, Dana Waters, and from Kevin Dempsey's wife Cynthia Bailey-Dempsey. The main issues in dispute concerned (1) the extent of damage caused by the Dempseys' pets and whether the damages exceeded "normal wear and tear," (2) the terms of the lease, including the timing and circumstances of the termination, and (3) whether Mr. Riley had wilfully and wrongfully withheld the security deposit beyond the 14 days provided by statute.
On the first issue, Mr. Riley presented photographs taken in April of 2004, showing scratches in various areas of the floor, in a sliding door, and in the upholstery of a couch and chairs. He also presented testimony from Gregory Brown of Brown's Hardwoods, Inc., estimating the total cost of resurfacing and refinishing the floors (including moving and storing the furniture) at about $4,470. Mr. Riley also presented evidence documenting additional costs of replacing a sliding door and re-upholstering the furniture. Mr. Dempsey presented testimony from Dana Waters, a real estate agent who had visited the house in early October of 2003. Mr. Waters testified that he did not observe any unusual wear and tear in the house. The Small Claims Court did not make extensive findings concerning the extent of the damage, but the court decided this first issue in Mr. Dempsey's favor by concluding that Mr. Riley had failed to show damages "above 'normal wear and tear' in a circumstance where pets are specifically allowed under the lease."
Both parties testified about the timing and circumstances of the termination, as did additional witnesses Francine Capizzi and Cynthia Bailey-Dempsey. The written lease expired in August of 2003, but the Dempseys continued their tenancy and paid the September rent. Earlier, in June of 2003, Mr. Riley had written the Dempseys to tell them to vacate the house by December 15, 2003. Nevertheless, the tenancy ended in October of 2003. It was clear from all the testimony that the Dempseys stayed in the house through October 4, and that Mr. Riley moved into the house on October 5, but that the Dempseys left many of their belongings there until October 29, and that they continued to clean the house until then. Mr. Riley emphasized that the Dempseys did not complete their moving and cleaning until October 29, and he maintained that Mr. Dempsey still owed rent from October 4 to October 29.
Ms. Bailey-Dempsey testified that they had wanted to stay in the house, especially after she broke her ankle in late September of 2003, but that Mr. Riley had insisted that they leave because he needed to move back in. She also testified that she worked out an arrangement with Mr. Riley that they would have additional time to complete the cleaning and to move out their belongings. Moving was difficult for her because she was on crutches. The Dempseys sent Mr. Riley a check to cover rent through October 4. He cashed it, and he never asked for additional rent until months later, when he claimed additional rent as a defense to Mr. Dempsey's counterclaim for return of the deposit. In addressing this second issue, the Small Claims Court found that Mr. Riley had insisted, over Dempsey's objections, that he had to move back into his house, that Riley moved back in on or about October 4, that the Dempseys moved out on or about October 5, and that the disarray that occurred between October 4 and October 29 was not unusual "in the context of a somewhat sudden and premature termination of the lease." (Findings 13, 16, 17, and 19). The court concluded that Mr. Riley had forced the Dempseys out of the house before they wished to leave, and that there was no basis for awarding rent for the period of October 4 to October 29, 2003.
On the third issue, Mr. Riley explained that the Dempseys did not complete their cleaning until October 29, 2003, and that he responded to their request for the security deposit in a letter dated November 6, 2003, setting forth his claims for damages totaling $5,800. The Small Claims Court resolved this issue in Mr. Riley's favor, concluding that the situation was confusing, and that his withholding of the security deposit was not "wilful" within the meaning of the statute.
The Small Claims Court awarded judgment in favor of Mr. Dempsey, both on Mr. Riley's claim and on Mr. Dempsey's counterclaim. The judgment award of $1,861 includes $1,836 for return of the deposit plus $25 in court costs. Mr. Riley filed his Notice of Appeal on August 31, 2004.
On appeal before the Superior Court, the standard of review is limited. The appeal must be heard and decided "based on the record made in the Small Claims Court." 12 V.S.A. § 5538. The appellate court will not set aside findings of fact unless they are clearly erroneous. Bartley-Cruz v. McLeod, 144 Vt. 263, 264 (1984). The appellate court gives less deference to the trial court with regard to issues of law. However, the weight of the evidence and the credibility of witnesses are for the Small Claims Court as the trier of fact. Brown v. Pilini, 128 Vt. 324, 328 (1970). When reviewing questions of fact, this court does not substitute its judgment for that of the Small Claims Court. Whipple v. Lambert, 145 Vt. 339, 341 (1985). Also see Vermont Rules of Small Claims Procedure 10(d) ().
Appellant Henry Riley filed his arguments in various documents. First he filed his Memorandum of Law, in which he raised five issues to be addressed on appeal. Then he filed a Motion to Set Aside Previous Judgment, Vacate Orders and Grant a New Trial, in which he restated his concerns in a list of seven issues. He also included Attachment A, in which he elaborated on his concerns. This court restates Mr. Riley's arguments and addresses them as follows:
1. The Small Claims Court failed to follow established procedures by allowing new evidence to be entered while testimony was being given.
Mr. Riley does not elaborate on how the Small Claims Court's procedures for admitting evidence varied from the rules, or on how he was prejudiced by the procedures that were followed. The Small Claims Court is designed to provide "simple, informal and inexpensive" procedures for settling claims. 12 V.S.A. § 5531(a). The Vermont Rules of Small Claims Procedure call for the court to conduct the hearing in a summary manner, Rule 6(a), and the rules of evidence do not apply, Rule 6(b). After reviewing the record, the Superior Court is unable to conclude that the Small Claims Court erred in the admission of evidence.
2. Although the Small Claims Court denied defendant's attempt to introduce additional evidence after the trial, the court improperly used his additional evidence to ascertain certain findings of fact, without allowing the plaintiff the same opportunity to present additional evidence.
Mr. Dempsey filed additional evidence approximately two weeks after the hearing. The Small Claims Court rejected his attempt to introduce new evidence, stating in its decision that "the court did not consider the additional evidence submitted by Defendant in making the findings." Mr. Riley now complains that the Small Claims Court did consider Mr. Dempsey's additional evidence, and that he (Mr. Riley) was not given an opportunity to submit his own additional evidence.
Mr Riley believes that the Small Claims Court considered Mr. Dempsey's additional evidence because the court found, as fact, that Mr. Riley had used his own house on two occasions during Mr. Dempsey's rental, during October of 2001 and October of 2002. ( 16). However, the findings do not show that the Small Claims Court improperly considered Mr. Dempsey's additional evidence, because they are amply supported by testimony in the record. Both Mr. Dempsey and Ms. Bailey-Dempsey testified about Mr. Riley using the house on those two occasions. Mr. Riley denied that he had used the house in October of 2002, and thus the record contains conflicting testimony about that issue. Given the conflicting evidence, however, the trial court had the responsibility to accept one version or another, which it did. The court's finding that Mr. Riley used the house on both occasions...
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