Rubin v. Sterling Enterprises, Inc., No. 94-480

Docket NºNo. 94-480
Citation674 A.2d 782, 164 Vt. 582
Case DateJanuary 05, 1996
CourtUnited States State Supreme Court of Vermont

Page 782

674 A.2d 782
164 Vt. 582
Matthew RUBIN, et al.
v.
STERLING ENTERPRISES, INC., et al.
No. 94-480.
Supreme Court of Vermont.
Jan. 5, 1996.
Motion for Reargument Denied Feb. 1, 1996.

Page 783

[164 Vt. 583] On Appeal from Washington Superior Court, Alan W. Cheever, J.

Richard I. Rubin of Rubin, Kidney, Myer & DeWolfe, Barre, for plaintiffs-appellees.

William A. Hunter, Cavendish, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Defendants Sterling Enterprises, Inc. and Floryan Lohutko appeal from both a jury verdict awarding plaintiffs damages for defamation and a judgment in plaintiffs' favor following a bench trial. We affirm.

On February 17, 1986, the parties entered a lease agreement under which plaintiffs rented land for the purpose of constructing and [164 Vt. 584] operating a hydroelectric facility. In November 1991, defendants demanded an additional $40,791 in rent and reimbursements because plaintiffs had failed to: (1) clean up rock and other construction debris at the site that would cost defendants $10,791 to remove; (2) preserve a turbine, with an estimated value of $10,000, which plaintiffs had removed from an abandoned powerhouse during construction; and (3) pay defendants 50% of additional revenues, amounting to $10,000 per year, from alleged increased operations at the facility in 1988 and 1989. When plaintiffs did not pay, defendants sent a notice of default to the Marble Bank, which

Page 784

held a mortgage on the project worth almost $1,000,000.

Plaintiffs thereupon commenced a libel action, alleging that defendants' defamatory default notice caused the bank to raise the interest rate on plaintiffs' loan. Defendants counterclaimed for the $40,791 allegedly owed by plaintiffs, and for an additional $10,000 in revenues from alleged increased operations in 1990.

Plaintiffs' defamation claims, together with defendants' counterclaims for the cleanup costs, the lost turbine, and the 1988 and 1989 surplus revenues, were tried to a jury in Washington Superior Court. The jury rendered a verdict in favor of plaintiffs for $46,000 and awarded nothing on defendants' counterclaims. Defendants' counterclaim for the 1990 surplus revenues was thereafter tried to the court, which issued findings of fact and conclusions of law, and entered judgment for plaintiffs. The court denied defendants' motions for judgment notwithstanding the jury's verdict and for reconsideration of the court's judgment with respect to the 1990 revenues. The court granted plaintiffs' motion to amend the judgment to include prejudgment interest in the amount of $1,633.

I.

With respect to the jury trial, defendants claim that the court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict. Motions for judgment notwithstanding the verdict raise substantially the same questions as motions for directed verdict and are treated alike. Center v. Mad River Corp., 151 Vt. 408, 411, 561 A.2d 90, 93 (1989). Both motions require a consideration of the evidence in the light most favorable to the prevailing party, excluding the effect of any modifying evidence. Crump v. P & C Food Markets, Inc., 154 Vt. 284, 292, 576 A.2d 441, 446 (1990). The motions should be denied if the record contains any evidence that fairly and reasonably supports the verdict. Id.

[164 Vt. 585] A.

Defendants first contend that the lease authorized them to report any default to the Marble Bank, and that such a communication was a business privilege that could not support plaintiffs' defamation action as a matter of law. We disagree. We have acknowledged a defendant's right to raise a "conditional privilege for the protection of its legitimate business interests." Id. at 293, 576 A.2d at 446; see Lent v. Huntoon, 143 Vt. 539, 548-49, 470 A.2d 1162, 1169 (1983). Once the defendant proves the existence of the privilege, however, the plaintiff may overcome the protection of the privilege by providing clear and convincing evidence of malice. Crump, 154 Vt. at 293, 576 A.2d at 447. A plaintiff may demonstrate malice by showing that the defendant engaged in conduct manifesting personal ill will or reckless or wanton disregard of the plaintiff's rights, or conduct carried out under circumstances evidencing insult or oppression. Id. The court may also "infer malice upon a showing that the defendant knew the statement was false or acted with reckless disregard of its truth." Lent, 143 Vt. at 549, 470 A.2d at 1169.

Defendants cite section 17 of the lease agreement in support of their claim to a business-interest privilege. That section allows the lessor to declare a default if the lessee "fail[s] in any of the agreements of [the] lease," and requires the lessor to provide the lessee and all lienholders with written notice of the alleged default. The trial court properly instructed the jury that defendants had a conditional privilege when it sent the default notice to the bank and that, to award any damages, the jury must first find that plaintiffs had overcome the privilege by showing at least an inference of malice.

Viewed in the light most favorable to plaintiffs, the evidence at trial supports at least an inference of malice in each of defendants'...

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41 practice notes
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, Nos. 18-162 & 18-257
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of a hearing." Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the tria......
  • Drumheller v. Drumheller, No. 07-108.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 6, 2009
    ...is for the court to amend the decree when there has been "mistake or inadvertence of the court." See Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Drawing on federal law, he asserts that there are only four proper grounds for amendment of a judgment: (1) to ac......
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, No. 2018-162
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of hearing." Rubin v. Sterling Enters., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the trial court ......
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, No. 2018-162
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of hearing." Rubin v. Sterling Enters., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the trial court ......
  • Request a trial to view additional results
41 cases
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, Nos. 18-162 & 18-257
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of a hearing." Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the tria......
  • Drumheller v. Drumheller, No. 07-108.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 6, 2009
    ...is for the court to amend the decree when there has been "mistake or inadvertence of the court." See Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Drawing on federal law, he asserts that there are only four proper grounds for amendment of a judgment: (1) to ac......
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, No. 2018-162
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of hearing." Rubin v. Sterling Enters., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the trial court ......
  • Trevor v. Icon Legacy Custom Modular Homes, LLC, No. 2018-162
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 15, 2019
    ...59 motions, particularly where the moving party has failed to show prejudice from the lack of hearing." Rubin v. Sterling Enters., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996). Here, even though Icon did not request an evidentiary hearing until its motion for reconsideration, the trial court ......
  • Request a trial to view additional results

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