Weinstein v. Leonard

• Decision Date: 13 November 2015
• Docket Number: No. 15–075.,15–075.
• Citation: 134 A.3d 547
• Court: Vermont Supreme Court
• Parties: Jennifer WEINSTEIN v. Jeanmarie LEONARD and Carol Sayour v. Lloyd J. Weinstein and The Weinstein Group, P.C.

134 A.3d 547

Jennifer WEINSTEIN

v.Jeanmarie LEONARD and Carol Sayour

v.Lloyd J. Weinstein and The Weinstein Group, P.C.

No. 15–075.

Supreme Court of Vermont.

Nov. 13, 2015.

Lloyd J. Weinstein of The Weinstein Group, PC, Woodbury, New York, for Plaintiffs–Appellees/Third–Party Defendants.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Defendants–Appellants/Third–Party Plaintiffs.

Present: DOOLEY, SKOGLUND, ROBINSON and EATON, JJ., and MORSE, J. (Ret.), Specially Assigned.

DOOLEY

, J.

¶ 1. Defendants-counterclaimants Jeanmarie Leonard and Carol Sayour appeal from the superior court's grant of summary judgment on their counterclaims in favor of plaintiff Jennifer Weinstein and third-party defendants, Lloyd Weinstein, plaintiff's husband, and his law firm, The Weinstein Group, P.C. Defendants claim on appeal that there are disputed material facts to justify a jury trial on their counterclaims of breach of contract, tortious invasion of privacy, and abuse of process, and that their reading of the allegedly breached contract is, at a minimum, a reasonable one precluding summary judgment. We affirm.

¶ 2. Construing the facts in the light most favorable to defendants, the genesis of this case is an application for a permit to construct a barn made by defendants in May 2012. Defendants, as well as plaintiff and her husband, are residents of the Rocking Stone Farm Subdivision in Manchester, Vermont. Defendants own Lot # 10 of the subdivision and plaintiff solely owns Lot # 9. On May 29, 2012, defendants received a zoning permit from Manchester's zoning administrator allowing them to construct a barn on Lot # 10. Pursuant to the Declaration for Rocking Stone Farm (the Declaration), defendants received a waiver from the Homeowner's Association (the Association), through the president and principal Tommy Harmon, permitting them to erect the barn. Plaintiff appealed the permit to the Manchester Development Review Board (the DRB) on June 12, 2012. The DRB affirmed the grant of the permit on August 6.

¶ 3. On August 25, defendant Leonard and her husband were walking along Lot # 10 with a landscape contractor when plaintiff began yelling at them from her upstairs window. Plaintiff then left her home and entered Lot # 10, accompanied by a "very large dog." Despite being asked to leave, she physically confronted the Leonards, who eventually left the lot.

¶ 4. Two days later, plaintiff filed an appeal of the DRB's decision to the Environmental Division of the superior court. Plaintiff, a trained attorney, initially represented herself, but Mr. Weinstein and his law firm, The Weinstein Group, P.C., entered an appearance as counsel for her on December 18. In November and December, both the Association and counsel for defendants advised plaintiff by letter that her opposition to the barn permit constituted a violation of the Non–Interference Clause of the Declaration, which provides that each owner of a lot in Rocking Stone Farm agrees "not [to] take any action to contest or interfere with any development in the Community so long as such development is consistent with the Land Use Approvals."

¶ 5. On February 4, 2013, the Environmental Division rendered judgment in favor of defendants. Plaintiff appealed that decision to this Court on February 13. On March 15, plaintiff also filed suit against defendants in superior court with a ten-count complaint, alleging, among other things, that the Declaration had been breached by defendants' construction of the barn. Defendants filed counterclaims against plaintiff for trespass, civil assault, breach of contract, tortious invasion of privacy, as well as abuse of process and third-party claims against Mr. Weinstein and his law firm for abuse of process and breach of contract.

¶ 6. Although counsel for plaintiffs had told Mr. Weinstein that their counsel had been authorized to accept process, defendants were served personally in their homes on or about March 26. Mr. Weinstein also sent letters directly to Mr. Harmon and defendants the night before oral argument in this Court in the zoning appeal, despite knowing they were represented by counsel. On September 13, this Court affirmed the decision of the Environmental Decision upholding the zoning permit. Following the Court's decision, Ms. Weinstein raised no more objections to the town's issuance of the permit.

¶ 7. In November 2014, with a jury trial scheduled for January 2015 in the remaining civil suit, plaintiff and Mr. Weinstein and The Weinstein Group, P.C., filed for summary judgment regarding the counterclaims and third-party claims asserted by defendants. On December 24, plaintiff filed a motion to voluntarily dismiss all remaining claims she had asserted against defendants. Finally, on January 12, 2015 the superior court partially granted the summary judgment motions, dismissing all but the civil assault and trespass claims against plaintiff and dismissing all claims against Mr. Weinstein and his law firm. Defendants then voluntarily withdrew their remaining two claims against plaintiff and appealed the grant of summary judgment to this Court.

¶ 8. Summary judgment decisions are reviewed de novo. "Summary judgment will be granted when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Glassford v. Dufresne & Assocs., 2015 VT 77, ¶ 10, ––– Vt. ––––, 124 A.3d 822

(quotations omitted).

¶ 9. Defendants' main claim is that plaintiff's efforts to stop the issuance of the permit to build the barn through the Manchester DRB and the courts were a violation of the noninterference clause contained in § 14.2 of the Declaration. The full section containing the clause states:

Section 14.2 Acknowledgments. Each owner acknowledges and agrees that such Owner will not take any action to contest or interfere with any development of the Community so long as such development is consistent with the Land Use Approvals. Each Owner hereby waives any right it may have to object to any Condominium Project to be developed on the Condominium Projects Lot so long as such Condominium Project is in conformance with the terms, conditions and restrictions of the Land Use Approvals. Each Owner further acknowledges and agrees that such Owner has not relied upon any representations or assurances regarding the development of the community, except for those statements set forth in this Declaration.

The term "community" is defined in § 2.8 of the Declaration as "the planned community formed under this Declaration, including the entirety of the Property, together with all buildings, improvements, amenities, facilities and infrastructure located on or appertaining to the Property now and in the future, together with all the easements and rights benefitting the Property." The term "Land Use Approvals" is defined in § 2.24 as "the federal, state and municipal approvals for the development of the Community listed in Exhibit B of this Declaration, as amended, supplemented or otherwise modified from time to time." Exhibit B describes the 15 permits obtained for the overall development between 1976 and 2006.

¶ 10. Defendants argue that under § 14.2 plaintiff's appearance before the Manchester DRB in opposition to their barn development proposal, as well as her appeals to the Environmental Division and to this Court, were actions "to contest or interfere with any development of the Community" that was consistent with the overall land use approvals. They further argue that the bringing of this civil suit was a violation of § 14.2. Thus, they argue that these actions violated § 14.2, and such a violation was a breach of contract, and that Mr. Weinstein and his law firm are liable for the breach as agents of plaintiff. They make the additional argument that if this Court finds the language of § 14.2 ambiguous as applied to the circumstances in this case, summary judgment was inappropriate, and they have the right to offer extraneous evidence on the meaning of the provision.

¶ 11. We begin with the argument that Ms. Weinstein's appearance in the development review procedure was a violation of § 14.2. In essence, defendants argue that § 14.2 is a form of exculpatory waiver agreement under which plaintiff waived her right to participate in municipal development review proceedings and any judicial review of such proceedings. Exculpatory agreements are generally disfavored. Provoncha v. Vermont Motocross Ass'n, 2009 VT 29, ¶ 12, 185 Vt. 473, 974 A.2d 1261

. They are subject to "close judicial scrutiny" and must meet "higher standards for clarity" than other contracts. Id.; see also Colgan v. Agway, Inc., 150 Vt. 373, 375, 553 A.2d 143, 145 (1988) ("a greater degree of clarity is necessary to make the exculpatory clause effective"). They are to be strictly construed "against the party relying" on them. Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ¶ 17, 183 Vt. 218, 945 A.2d 368. In addition to imposing clarity and specification requirements on the drafting of exculpatory clauses, we have also found exculpatory clauses ineffective if they violate public policy. Dalury v. S–K–I, Ltd., 164 Vt. 329, 332, 670 A.2d 795, 797 (1995). Exculpatory clauses will be upheld only if they are "freely and fairly made ... between parties who are in an equal bargaining position, and ... there is no social interest with which [they] interfere." Id. (citation omitted). The public interest is determined through consideration of the "totality of the circumstances of any given case against the backdrop of current societal expectations." Id. at 334, 670 A.2d at 798.

¶ 12. We need not get beyond the disclosure and specificity standards to rule that we will not enforce § 14.2 in the manner sought by defendants. The waiver language is contained in an Article titled "DISCLOSURES AND ACKNOWLEDGMENTS" in a section entitled Acknowledgements. It is on page 34 of a 39 page...