Soucy v. Soucy Motors, Inc.

• Decision Date: 12 December 1983
• Docket Number: No. 82-139,82-139
• Citation: 143 Vt. 615,471 A.2d 224
• Court: Vermont Supreme Court
• Parties: Diane T. SOUCY and Richard L. Zeglen, d/b/a Jake's Yamaha v. SOUCY MOTORS, INC. and T & I Corporation.

Page 224

471 A.2d 224

143 Vt. 615

Diane T. SOUCY and Richard L. Zeglen, d/b/a Jake's Yamaha v. SOUCY MOTORS, INC. and T & I Corporation.

No. 82-139.

Supreme Court of Vermont.

Dec. 12, 1983.

Melvin D. Fink and Barry J. Polidor of Fink & Birmingham, P.C., Ludlow, for plaintiffs-appellants.

Parker, Lamb & Ankuda, P.C., Springfield, for defendants-appellees.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

UNDERWOOD, Justice.

Plaintiffs appeal an adverse judgment rendered by the Windsor Superior Court in favor of the defendant Soucy Motors, Inc. on its counterclaim for delinquent rent. Plaintiffs first brought suit seeking an ex parte temporary restraining order, a preliminary and permanent injunction, and damages, for an alleged wrongful "lock out" from the premises they had been occupying under a claimed sublease from the defendant Soucy Motors, Inc. The court granted a temporary restraining order. The jurisdiction of the court (comprised of the presiding judge and the two assistant judges) that heard the petition for a temporary restraining order and the validity of that order, however, were resolved below by stipulation and are not now challenged on this appeal. Plaintiffs appeal only from a subsequent judgment, rendered by the presiding judge and one assistant judge, ¹ on the counterclaim of defendant Soucy Motors, Inc. for delinquent rent.

Plaintiffs advance two arguments on this appeal. First, they declare that the trial court erred in failing to consider all of the facts and surrounding circumstances of a general release, by which they claim the defendant Soucy Motors, Inc. released them of any obligation to pay rent. Second, they contend that the trial court, sitting in equity, had no jurisdiction to decide the case because one assistant judge participated with the presiding judge in the findings, conclusions, and judgment order. We agree with plaintiffs' second argument and reverse and remand for a new trial; therefore we do not reach the issue concerning the general release.

Neither party challenged the jurisdiction of the trial court below. Plaintiffs raise the issue of an improperly constituted trial court before this Court for the first time. Although generally we will not entertain an issue which was not raised below, "[t]he question of the jurisdiction of the trial court may be raised here for the first time." Harlacker v. Clark, 116 Vt. 107, 111, 70 A.2d 572, 574 (1950). "[O]bjections to jurisdiction over the subject-matter in litigation are always timely." Berry v. Arnoldware-Rogers, Inc., 127 Vt. 188, 192, 243 A.2d 781, 784 (1968) (Barney, J., on motion for reargument).

Plaintiffs initiated this action by requesting a temporary restraining order; this invoked the court's equitable jurisdiction. See In re Crescent Beach Association, Inc., 126 Vt. 448, 451, 236 A.2d 497, 499 (1967). Once invoked, equity retains jurisdiction over the entire action to see that complete relief is administered. LaMantia v. King, 129 Vt. 628, 634-35, 285 A.2d 741, 745 (1971). See Davis v. Hodgdon, 133 Vt. 49, 53, 329 A.2d 669, 672 (1974). When defendant Soucy Motors, Inc. counterclaimed for delinquent rent, the action was already under the court's equitable jurisdiction and this was not disturbed by the defendant's legal counterclaim.

In Pockette v. LaDuke, 139 Vt. 625, 432 A.2d 1191 (1981), we held that the trial court, composed of the presiding judge and two assistant judges, was without jurisdiction under 4 V.S.A. § 219 ² to hear a case that sought injunctive relief and money damages. Furthermore, we noted that:

The responsibility for guaranteeing that a properly constituted court is entertaining a particular suit clearly falls upon the presiding judge. He cannot shift his responsibility to the parties, their attorneys or the assistant judges.

Id. at 628, 432 A.2d at 1192. Section 219 is jurisdictional in nature, and "[a] superior court constituted with one presiding judge and two assistant judges is without jurisdiction to hear a case sounding in equity. Only a court with a presiding judge sitting alone has such power." Id. at 627, 432 A.2d at 1192. We are not disposed to retreat from Pockette, and we reaffirm its holding today.

Defendants rely on a number of post-Pockette decisions to support their argument for jurisdiction. All involve assistant judges hearing cases in equity. In Swanson v. Bishop Farm, Inc., 140 Vt. 606, 443 A.2d 464 (1982), this Court indicated that the presence of assistant judges in equity was error, but labelled it "harmless error." Id. at 611-12, 443 A.2d at 466. The Court pointed out that 4 V.S.A. § 219 was the source of the error, and warned the trial court "to make sure that it is properly constituted especially in cases seeking equitable relief." Id. at 612, 443 A.2d at 467. Virtually the same observations and warning were made scarcely three months earlier in Braun v. Humiston, 140 Vt. 302, 305, 437 A.2d 1388, 1389 (1981) (harmless error for assistant judges to sit in equitable matters, unless record shows active participation). Evidently this warning has gone unheeded.

On the same day that Humiston was handed down, this Court observed that "[i]t should be noted again this was an equitable action and the assistant judges should not and cannot participate therein." White Current Corp. v. State, 140 Vt. 290, 291, 438 A.2d 393, 394 (1981). Immediately afterward, however, the Court found the error to be harmless. Id.

Finally, two months before Humiston and White Current were handed down, the Court purported to distinguished Pockette and limit it "to situations where improper constitution of the court may have affected the eventual result." Brower v. Holmes Transportation, Inc., 140 Vt. 114, 118, 435 A.2d 952, 954 (1981). Under this reasoning, jurisdictional error becomes "harmful" only after this Court has found it to have affected the results. This is an untenable notion of jurisdiction, and we abandon it today.

Taken together, Swanson, Humiston, White Current and Brower leave undisturbed the jurisdictional nature of 4 V.S.A. § 219 as explained in Pockette, but find a harmless error exception to jurisdiction by factually distinguishing Pockette. The idea that jurisdiction itself may turn upon such factual niceties is as novel as the very notion of a harmless error exception to jurisdiction. Under such reasoning this Court would face the illusive task of scouring transcripts and other records from below for "influence" that may "affect" the results. Only then would jurisdiction be affected. We cannot adhere to this course and overrule Swanson, Humiston, White Current, and Brower to the extent they are inconsistent with Pockette.

The legislature did not speak in equivocal terms in 4 V.S.A. § 219: "All rights, powers and duties of a chancellor shall vest exclusively in the presiding judge ...." (emphasis added). Pockette best implements this legislative mandate. The converse situation is true as well. In Suitor v. Suitor, 137 Vt. 110, 111, 400 A.2d 999, 1000 (1979), this Court reversed and remanded an order of the Chittenden Superior Court because the presiding judge acted on a contempt proceeding without the assistant judges. Under 4 V.S.A. § 112 this Court observed "that the superior judge, albeit the presiding judge, did not constitute a statutory court.... Because the judge was without statutory authority to hear the cause, his purported order [was] without basis in law." Suitor, supra. Just this past September, we reversed and remanded a case in which the court was improperly constituted under 4 V.S.A. § 111(a). Vermont Union School District No. 21 v. H.P. Cummings Construction Co., 143 Vt. 416, 469 A.2d 742 (1983). There we held, "Compliance with 4 V.S.A. § 111(a) is a jurisdictional prerequisite to the hearing of any case ...." Id. at ---, 469 A.2d at 746 (emphasis added). Although that case involved a situation in which the assistant judges were absent when they should have been present, the Court noted that "orders issued from an improperly constituted court are void, since they lack any basis in law." Id. at ---, 469 A.2d at 746 (emphasis added). Since jurisdiction is a prerequisite to the power of a court to hear a case, there can be no harmless error.

Analogous support for the jurisdictional mandate of § 219 may be gained from the provisions of 4 V.S.A. § 111(a):

In claims for equitable relief and claims which before the effective date of section 219 of this title were triable only by the court of chancery, trial shall be by the presiding judge sitting alone. (emphasis added).

When the pertinent statutes and case law are read together (§ 219, § 111 and Pockette ), there can be little doubt that the Legislature intended "claims for equitable relief" to be heard, considered, and decided by the presiding judge alone. This authority admits of no harmless error exception to the superior court's equitable jurisdiction.

In the instant case, the court's equitable jurisdiction was clearly invoked: a temporary restraining order--an injunction--is a fundamental equitable remedy. Crescent Beach, supra. A legal counterclaim will not upset the court's equitable jurisdiction. The hearing on the restraining order and the hearing on the delinquent rent counterclaim, although held on different dates, were part of one action under the court's equitable jurisdiction. The presence of even one assistant judge during the latter hearing was reversible error, since the court, as constituted, had no jurisdiction to hear the case.

Reversed and remanded.

GIBSON, Justice, dissenting.

I must dissent from the majority opinion. The jurisdictional issue has been resolved previously by this Court, and in deviating from the established case law the majority is opening a Pandora's box that will cause myriad troubles to litigants, bench and bar for years to come.

The controversy revolves around 4 V.S.A. § 219, which provides:

All rights, powers and duties of a...