State v. Therrien, No. 92-477

Docket NºNo. 92-477
Citation633 A.2d 272, 161 Vt. 26
Case DateSeptember 24, 1993
CourtUnited States State Supreme Court of Vermont

Page 272

633 A.2d 272
161 Vt. 26
STATE of Vermont
v.
Carolyn THERRIEN, Executrix of the Estate of Andrew Therrien.
No. 92-477.
Supreme Court of Vermont.
Sept. 24, 1993.

Page 273

[161 Vt. 27] Jeffrey L. Amestoy, Atty. Gen., and Philip J. Cykon and Conrad W. Smith, Asst. Attys. Gen., Montpelier, for plaintiff-appellee.

Richard E. Davis and Richard E. Davis, Jr., of Richard E. Davis Assocs., Barre, for defendant-appellant.

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

DOOLEY, Justice.

This proceeding began with a complaint filed in the Orleans Superior Court by the State of Vermont against Andrew Therrien charging him with violating Act 250, 10 V.S.A. §§ 6001-6108, and the Consumer Fraud Act, 9 V.S.A. §§ 2451-2462, in connection with his Salem Heights development in the Town of Derby. Andrew Therrien died after trial but before judgment was entered against him. His wife Carolyn was substituted as defendant, in her capacity as executrix and distributee of the estate of her husband. The estate also became a defendant. The court then issued its August 10, 1992 judgment nunc pro tunc effective July 9, 1990. Defendant Carolyn Therrien appeals from both the substitution and judgment order, arguing that the proceeding should have ended on her husband's death and that a part of the judgment dealing with water systems in the development was beyond the power of the court. We affirm.

In October 1975, Andrew Therrien was issued a land use permit pursuant to Act 250 allowing him to subdivide 100 acres in the Salem Heights development into seventy-seven residential lots. Therrien failed to comply with the septic and well water system conditions in the permit; in fact, the superior court later found his noncompliance both willful and intentional. As a result of Therrien's failure to construct appropriate septic and well systems, numerous problems developed: some residents [161 Vt. 28] had little or no water pressure, sewage effluent surfaced and stagnated, and water wells were eventually contaminated with fecal waste.

Trial was concluded and the case taken under advisement on July 9, 1990. The court issued its findings, conclusions and order on July 10, 1991, adjudging Therrien liable for violations of both Act 250 and the Consumer Fraud Act. In the interim between trial and judgment, however, Andrew Therrien had died. Therrien's death on June 15, 1991 was suggested upon the record on July 16, 1991.

In its July 10, 1991 decision, the court cited Therrien for nine violations of his Act 250 land use permit, including installation of community water systems not allowed under his permit; installation of improper individual septic systems, community septic systems, and collection sewers; failure to install appropriate septic systems as required by the land use permit; failure to comply with the isolation distances for water wells and lines from septic systems; failure to show land purchasers the land use permit and associated documentation; and, finally, failure to seek appropriate amendments to the land use permit. The court also found Therrien liable for unfair or deceptive acts and practices prohibited by the Consumer Fraud Act, 9 V.S.A. § 2453, for selling subdivision lots not in compliance with the land use permit. The court ordered Therrien to remedy the water supply and septic system deficiencies.

In late August 1991, the court granted the State's motion to substitute the estate of Andrew Therrien as a party for Andrew Therrien, but denied a motion to substitute defendant Carolyn Therrien. In early September 1991, Andrew Therrien's estate was opened, and defendant was appointed executrix. In February 1992, the court granted the State's motion to amend the July 10, 1991 judgment to bind the estate and executrix; in the alternative, the court also granted the State's motion for judgment nunc pro tunc effective July 9, 1990. Thereafter, on August 10, 1992, the court entered the judgment order substituting the estate of Andrew

Page 274

Therrien and defendant as parties. The defendant now appeals. 1

[161 Vt. 29] On appeal, defendant argues that: (1) the State's cause of action does not survive the death of Andrew Therrien; (2) the judgment order could not be issued nunc pro tunc to a date before the death of Andrew Therrien; (3) it was error to name defendant as a party and impose personal liability on her; and (4) it was error to alter the conditions of paragraph 5 of the Act 250 permit in the judgment order. We take these arguments in order.

Under V.R.C.P. 25(a)(1), a court may order the substitution of proper parties "[i]f a party dies and the claim is not thereby extinguished." To meet the requirements of Rule 25(a)(1), the claim must survive the death of the party and a proper replacement party must be substituted.

The second requirement was met here because an executor or administrator may defend actions that survive that were "commenced in the lifetime of the deceased." 14 V.S.A. § 1401. Additionally, "[a] person having a contingent or other claim against a deceased person may prosecute the same against the executor ... [or] devisees." 14 V.S.A. § 1417. Thus, under either § 1401 or § 1417, defendant in her capacity as executrix was a proper party for substitution. Similarly, under § 1417, defendant in her capacity as devisee (distributee) was a proper party for substitution. Thus, if the State's claims against Andrew Therrien survived his death, defendant as executrix and distributee was a proper party for substitution. See McSurely v. McClellan, 753 F.2d 88, 99 (D.C.Cir.) (holding under virtually identical federal rule that "the distributee of a distributed estate is a 'proper party' for substitution under Rule 25(a)(1)"), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985).

Defendant argues that the action abated on Andrew Therrien's death because all actions abated at common law and no statute authorizes survival of the claims in this case. We agree that neither Act 250 nor the Consumer Fraud Act directly and explicitly authorizes survival of claims thereunder. We also find no general survival statute that explicitly addresses these claims. Section 1417 broadly states that when a party has a contingent or other claim against the deceased, "an action commenced against the deceased before death may be prosecuted to final judgment." 14 V.S.A. § 1417...

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14 practice notes
  • Hinkson v. Stevens, No. 2019-049
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 7, 2020
    ...Vermont Fair Housing and Public Accommodations Act "must be liberally construed to effectuate its remedial purpose"); State v. Therrien, 161 Vt. 26, 30-31, 633 A.2d 272, 275 (1993) (explaining that "Act 250 and the Consumer Fraud Act are remedial legislation" and "[w]e must apply remedial l......
  • Hinkson v. Stevens, No. 19-049
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 7, 2020
    ...Vermont Fair Housing and Public Accommodations Act "must be liberally construed to effectuate its remedial purpose"); State v. Therrien, 161 Vt. 26, 30-31, 633 A.2d 272, 275 (1993) (explaining that "Act 250 and the Consumer Fraud Act are remedial legislation" and "[w]e must apply remedial l......
  • State v. Blondin, No. 94-048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 28, 1995
    ...to unjust, absurd, or irrational consequences. 1 E.g., State v. Forcier, 162 Vt. 71, 74-75, 643 A.2d 1200, 1202 (1994); State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); State v. Papazoni, 159 Vt. 578, 580-81, 622 A.2d 501, 503 (1993); State v. Caron, 155 Vt. 492, 513, 586 A.2d 1......
  • Elkins v. Microsoft Corp., No. 01-431.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 1, 2002
    ...v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998) (VCFA should be applied "liberally to accomplish its purposes"); State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993). Of course, liberal construction does not allow us to stretch the language beyond legislative intent. See Wilder ......
  • Request a trial to view additional results
14 cases
  • Hinkson v. Stevens, No. 2019-049
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 7, 2020
    ...Vermont Fair Housing and Public Accommodations Act "must be liberally construed to effectuate its remedial purpose"); State v. Therrien, 161 Vt. 26, 30-31, 633 A.2d 272, 275 (1993) (explaining that "Act 250 and the Consumer Fraud Act are remedial legislation" and "[w]e must apply remedial l......
  • Hinkson v. Stevens, No. 19-049
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 7, 2020
    ...Vermont Fair Housing and Public Accommodations Act "must be liberally construed to effectuate its remedial purpose"); State v. Therrien, 161 Vt. 26, 30-31, 633 A.2d 272, 275 (1993) (explaining that "Act 250 and the Consumer Fraud Act are remedial legislation" and "[w]e must apply remedial l......
  • State v. Blondin, No. 94-048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 28, 1995
    ...to unjust, absurd, or irrational consequences. 1 E.g., State v. Forcier, 162 Vt. 71, 74-75, 643 A.2d 1200, 1202 (1994); State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); State v. Papazoni, 159 Vt. 578, 580-81, 622 A.2d 501, 503 (1993); State v. Caron, 155 Vt. 492, 513, 586 A.2d 1......
  • Elkins v. Microsoft Corp., No. 01-431.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 1, 2002
    ...v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998) (VCFA should be applied "liberally to accomplish its purposes"); State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993). Of course, liberal construction does not allow us to stretch the language beyond legislative intent. See Wilder ......
  • Request a trial to view additional results

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