Dayco, Inc v. Al Bergeron and Paula Bergeron d/b/a Bergeron's Service Center ( 2012 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-265
DECEMBER TERM, 2012
Dayco, Inc. } APPEALED FROM:
}
} Superior Court, Windsor Unit,
v. } Civil Division
}
}
Al Bergeron and Paula Bergeron } DOCKET NO. 228-4-12 Wrcv
d/b/a Bergeron’s Service Center
Trial Judge: Theresa S. DiMauro
In the above-entitled cause, the Clerk will enter:
Tenants appeal from a judgment of the superior court, civil division, awarding landlord
back rent of $20,812.76 plus costs and interest. They contend the trial court erred in admitting
several exhibits under the business-records exception to the hearsay rule. We affirm.
The record evidence may be summarized as follows. In January 2003, tenants entered
into an oral agreement with landlord to lease a portion of a warehouse in West Hartford to
conduct an automobile-service business. Tenants agreed to pay rent of $600 per week, and to be
responsible for all utilities and snow plowing. The rent later increased to $750 per week.
Alleging that tenants were in substantial arrears, landlord terminated the lease at the end of 2011
and filed a complaint for unpaid rent. Tenants counterclaimed for damages allegedly arising
from landlord’s failure to maintain the premises.
A one-day trial was held in June 2012. Landlord was represented by counsel; tenants
represented themselves, although they are represented by counsel on appeal.* Landlord
submitted ten exhibits in support of his claim, three of which are the subject of this appeal.
Exhibit 3 was described by landlord as a “recap that was done by my accountant in the office to
determine how much monies were owed for specific years, and how much money was paid and
how much money was due.” Exhibits 5 and 10 were described by landlord as spreadsheets in
which “running balances were kept” of rents due and paid. He explained that they were
“developed by someone in my office that showed the monies that were due each week and
credits that were applied as the year progressed.” Tenants later also referenced the “spreadsheets
that we were getting from” landlord.
The record shows that the trial court inquired of tenants if they had any objection to the
admission of landlord’s ten exhibits. Tenants responded by asking, as to Exhibit 3, if it showed
*
Although both tenants testified individually at trial, we refer to them collectively as
tenants throughout for convenience.
“the amount he says we paid him in 2010?” The court explained that objections to admissibility
of a document are “not because you disagree with it” but rather relate to the sufficiency of the
testimony to establish its authenticity, and that they could later cross-examine landlord about the
amount claimed. Tenants responded that they were “just . . . disputing the dollar figure for
2010.” The court again explained that the question was not whether they had a “disagreement”
with the figures but whether the testimony showed that they were “internal business records
generated in the business.” Tenants responded that they were concerned about the accuracy of
the numbers, explaining: “[We’re] trying to state that if that’s what he says that we only paid him
$21,000, [we] have a thirty-seven thousand dollar [figure] that we paid him in 2010.” The court
made one more attempt, asking tenants to “articulate what the objection is” to the exhibits,
observing that there appeared to be no “claim that these records are not what . . . [landlord]
testified to . . . [that] they’re business records.” Tenants responded, “Well, [we’re] claiming . . .
that there’s quite a bit missing,” referring to a number of rent credits which they claimed were
not shown in the documents. The court again explained that tenants could “establish that in
cross-examination” and admitted the exhibits.
Tenants submitted no documentation to support their claim that they were entitled to
additional credits against rent. At the conclusion of the hearing, the court ruled in favor of
landlord, awarding back rent of more than $20,000, and ruled against tenants on their
counterclaims.
On appeal, tenants assert that the trial court erred in admitting Exhibits 3, 5, and 10
under the hearsay exception for business records, V.R.E. 803(6). Specifically, they claim that
the evidence was insufficient to show that the records were “kept in the course of regularly
conducted business,” that they were “made at or near the time” by or from “information
transmitted by a person with knowledge,” or that landlord was a “qualified witness” to establish
these requirements. Id. It is axiomatic, however, that “a hearsay issue may not be raised for the
first time on appeal absent preservation by specific, timely objection during the proceeding.” In
re Smith, 169 Vt. 162, 173 (1999). The preservation requirement serves the “important goals” of
“creating an adequate record for review, and allowing the trial court to correct any errors and
rule on objections in the first instance.” State v. Erwin, 2011 VT 41, ¶ 14, 189 Vt. 502.
The record here shows that tenants raised no objection remotely related to the claims
asserted on appeal concerning the business-records exception, nor indeed that they raised any
objection whatsoever to the admissibility of the records. Although the court inquired on several
occasions whether tenants had any objection to the exhibits’ admissibility as business records,
and explained that the issue concerned the documents’ reliability and authenticity rather than
their accuracy—which tenants could explore on cross-examination—they raised no objection.
Although tenants’ maintain that the gist of their arguments on appeal was “apparent from the
context” and that they “repeatedly voice[d] . . . issues with the reliability and trustworthiness” of
the exhibits, the argument finds no support in the record.
While we recognize tenants’ pro se status entitles them to greater leeway on appeal with
respect to the preservation requirement, it does not entirely dispense with it. As we stated in In
re Entergy Nuclear Vermont Yankee, LLC, “this flexibility, without more, is not sufficient to
convince us” that tenants adequately raised below the issues they now argue on appeal. 2007
VT 103, ¶ 12, 182 Vt. 340; see also Valteich v. Knott, 139 Vt. 588, 590-91 (1981) (observing
2
that while Court affords greater flexibility to pro se litigants, “[t]his does not mean that [they] are
not bound by the ordinary rules of civil procedure”). Nor, finally, are we free to address the
claims as plain error. “[W]e consider plain error in civil cases ‘only in limited circumstances,
i.e., when an appellant raises a claim of deprivation of fundamental rights, or when a liberty
interest is at stake in a quasi-criminal probation hearing.” Pcolor v. Casella Waste Sys., Inc.,
2012 VT 58, ¶ 20, ___ Vt. ___ (quoting Follo v. Florindo, 2009 VT 11, ¶ 16, 185 Vt. 390).
These circumstances are not present here. Accordingly, we find no basis to disturb the judgment.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
3