The Estate of Daniels v. Goss, 2021-145

Docket Nº2021-145
Citation2022 VT 2
Case DateJanuary 14, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 2

The Estate of Richard S. Daniels, by and through Julie Lyford in her capacity as Executor et al.
James Goss, et al.

No. 2021-145

Supreme Court of Vermont

January 14, 2022

On Appeal from Superior Court, Rutland Unit, Civil Division Helen M. Toor, J.

Ritchie E. Berger and Justin B. Barnard of Dinse P.C., Burlington, for Plaintiffs-Appellants.

William L. Gagnon and Evan A. Foxx of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for Defendants-Appellees.

Thomas J. Donovan, Jr., Attorney General, and Nicholas F. Persampieri, Assistant Attorney General, Montpelier, for Amicus State.

PRESENT: Eaton and Carroll, JJ., and Zonay and Carlson, Supr. JJ., and Morris, Supr. J. (Ret), Specially Assigned


¶ 1. In this legal-malpractice case, plaintiff Richard Daniels[1] appeals the trial court's grant of summary judgment in favor of defendants Attorney James Goss, Attorney Matthew Hart, and law firm Facey Goss & McPhee P.C. (FGM), arguing the court erred when it concluded he could not prove defendants caused his injury as a matter of law. Defendants represented plaintiff in a state environmental enforcement action where he was found liable for a


hazardous-waste contamination on his property. On appeal, plaintiff asserts that defendants failed to properly raise two dispositive defenses: the statute of limitations and proportional liability. We conclude plaintiff would not have prevailed on either defense if raised and therefore affirm the grant of judgment to defendants.

¶ 2. The undisputed facts are as follows. The case underlying this legal-malpractice action came before us in Agency of Natural Resources v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445. That decision details the factual and procedural history, which we briefly restate here. The property at issue is located in Hartford, Vermont, and is the site of a documented hazardous-waste release. From the late 1970s to late 1980s, a dry-cleaning business operated on the property. At some point, perchloroethylene (PERC), a known human carcinogen and hazardous-waste material used in dry-cleaning operations at the time, was dumped on the property or released from the dry-cleaning equipment. The state began to investigate the contamination in 1987. Plaintiff purchased the property through a tax sale in 1995. In 2002, the state began to communicate with plaintiff regarding the PERC contamination on the property.

¶ 3. In 2006, plaintiff hired defendant FGM to represent him in responding to the state's investigation with Goss to serve as a principal attorney in the case. Goss advised plaintiff to transfer the property from his name to a company in an effort to limit his liability. In late 2006, plaintiff conveyed title to the property to Hazen Street Holdings, Inc., a company defendants created for plaintiff for this purpose, and ceased cooperating with the state.

¶ 4. In July 2010, the state filed a complaint against plaintiff, individually and as principal of Hazen Street, under 10 V.S.A. §§ 6615 and 8221, asserting he was liable for the hazardous-waste contamination as the current owner of the property. Plaintiff retained FGM to represent him in the state's enforcement action, and attorneys Goss and Hart were assigned to handle plaintiff's case. In January 2014, defendants moved for summary judgment on all the state's claims, arguing plaintiff could not be held liable because he was a former owner and no


release had occurred during his ownership. Defendants did not raise the statute-of-limitations argument in this motion although they had raised it in plaintiff's answer. The court denied plaintiff's motion and instead granted the state's cross-motion for summary judgment on liability, ruling that plaintiff's transfer to Hazen Street was fraudulent and he was liable as a current owner under 10 V.S.A. § 6615(a)(1), which does not require the release of hazardous waste to occur during ownership.

¶ 5. Dissatisfied with defendants' representation, plaintiff engaged new counsel and moved to substitute counsel in October 2015, which the court approved in June 2016. New counsel moved to reopen discovery to develop additional facts and later moved to reopen summary judgment to raise the statute-of-limitations defense, both of which the trial court denied. Following a 2017 trial to determine monetary and injunctive relief, the trial court issued a final judgment order in 2018 reaffirming its earlier summary judgment ruling on liability, awarding damages, and issuing a mandatory injunction requiring plaintiff to undertake an environmental site investigation and other appropriate corrective actions. Plaintiff appealed to this Court, arguing-among other things-that the trial court abused its discretion in declining to reopen summary judgment to consider new evidence bearing on the statute-of-limitations defense. We affirmed the trial court's decision, concluding in relevant part that plaintiff waived his statute-of-limitations argument by failing to properly present it in a timely manner. Parkway Cleaners, 2019 VT 21, ¶ 45.

¶ 6. In July 2019, plaintiff filed a legal-malpractice action against defendants, asserting claims for professional negligence and breach of fiduciary duty, and seeking declaratory judgment on defendants' indemnity to plaintiff for his continuing costs stemming from the state's enforcement action.[2] Plaintiff alleged nine theories of liability to demonstrate defendants' professional negligence, two of which are relevant here: (1) defendants should have raised the


statute of limitations because the state's enforcement action was time-barred, and (2) defendants should have raised a proportional-liability defense, which would have reduced or eliminated plaintiff's liability. Defendants moved for summary judgment on all plaintiff's claims, and the trial court granted the motion.

¶ 7. On the professional-negligence claim, the court held that plaintiff would not likely have succeeded on either the statute-of-limitations or the proportional-liability defense as a matter of law. Acknowledging uncertainties in the law, the court concluded that ownership of the noncompliant, contaminated property constituted a "continuing violation" such that the limitations period had not run when the state brought its enforcement action against plaintiff. Next, the court concluded that the proportional-liability defense argument likely would have failed if raised, because the defense was unavailable to persons held liable as current owners under § 6615(a)(1). The court granted summary judgment on the breach-of-fiduciary-duty claim for the same reasons as the legal-malpractice claim, and held that the declaratory-judgment claim was moot because the substantive claims had been rejected. Plaintiff appealed.

¶ 8. On appeal, plaintiff argues: (1) the statute-of-limitations defense would not have failed, because mere ownership of a contaminated property is not a "continuing violation" under 10 V.S.A. §§ 6615 and 8015; and (2) he was not prevented as a matter of law from raising the proportional-liability defense under 10 V.S.A. § 6615(c) because the defense is available to persons liable solely based on current ownership of a contaminated property.

¶ 9. We review a motion for summary judgment without deference, applying the same standard as the trial court. Agency of Nat. Res. v. U.S. Fire Ins. Co., 173 Vt. 302, 305, 796 A.2d 476, 478 (2001). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). The material facts in this case are undisputed so we proceed to the questions of law.


¶ 10. To succeed on an attorney-malpractice claim, a plaintiff must prove "both that [the] defendant was negligent and that the negligence was the proximate cause of [the] plaintiff's harm." Powers v. Hayes, 172 Vt. 535, 536, 776 A.2d 374, 375 (2001) (mem.). "Proximate cause requires a plaintiff to demonstrate by a preponderance of the evidence that the attorney's act was a cause-in-fact of the plaintiff's injury." Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 19, 206 Vt. 157, 179 A.3d 182. To establish causation in this case, plaintiff had to show he would have succeeded in his defense of the state's enforcement action "but for defendants' failure" to raise either the statute of limitations or the proportional-liability defense. Knott v. Pratt, 158 Vt. 334, 336, 609 A.2d 232, 233 (1992). Whether plaintiff would have prevailed on either of these arguments is a question of statutory interpretation, which we review de novo. Wright v. Bradley, 2006 VT 100, ¶ 6, 180 Vt. 383, 910 A.2d 893.

¶ 11. When interpreting a statute, this Court's aim is to "determine and give effect to the intent of the Legislature." Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt. 129, 969 A.2d 54 (quotation omitted). This inquiry begins with the plain meaning of the language of the statute. Flint v. Dep't of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. "Where the Legislature's intent can be ascertained from the plain meaning of the statute, we interpret the statute according to the words the Legislature used." In re M.C., 2018 VT 139, ¶ 9, 209 Vt. 219, 204 A.3d 1123 (quotation omitted). When the plain language is ambiguous, we construe statutes in light of the "entire statutory scheme." Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993). In doing so, we look to the statute's "purpose, effects[, ] and consequences." Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 14, 641 A.2d 765, 767 (1994).

¶ 12. We turn first to the statute of limitations, then to the proportional-liability defense, and conclude plaintiffs' arguments for both are without merit and therefore would not have prevailed if properly raised.


I. Statute of Limitations

¶ 13. Plaintiff would not have...

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