moncrief v. mcbride ( 2024 )

Vermont Superior Court
Filed 06/02/21
Addison Unit
VERMONT SUPERIOR COURT CIVIL DIVISION
Addison Unit Case No. 167-10-17 Ancv
7 Mahady Court
Middlebury VT 05753
802-388-7741
www.vermontjudiciary.org
Moncrief et al vs. McBride et al
ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 9)
Filer: Christopher D. Roy
Filed Date: February 25, 2021
The motion is GRANTED IN PART and DENIED IN PART.
Unlawful mischief and attorneys’ fees
Dd 46.
Defendants argue that they did not damage Plaintiffs’ “property” because they did not
cross the boundary line to enter Plaintiffs’ land. The court rejects the argument that easement
rights and physical items used in connection with easements are not “property” for purposes of
unlawful mischief for the reasons set forth in Plaintiffs’ memorandum. Since there are facts
alleged to support Plaintiffs’ claim of damage to Plaintiff's “property” interests located on
Defendants’ land, summary judgment is denied with respect to the argument that property was
not damaged.
There are sufficient disputes of material fact to preclude summary judgment. There are
seemingly several instances of conduct at issue. The intent element necessary for the unlawful
mischief claim as it relates to some or all of those instances requires inferring intent from
conduct. Thus, the facts as stated by Defendants are not clearly undisputed facts upon which a
legal ruling can be based. The issues of fact related to the unlawful mischief claim need to be
resolved by factfinder(s).
Punitive Damages
Plaintiffs argue that facts sufficient to support the “intent” element necessary for unlawful
mischief also automatically satisfy the required element of “malice” for purposes of a punitive
damages claim. The court does not accept that proposition. The intent to do an act, even one that
qualifies as unlawful mischief, is not necessarily the same as carrying out an act with the malice
element necessary for punitive damages.
Entry Regarding Motion Page 1 of 3
167-10-17 Ancv Moncrief et al ys. McBride et al
The standard for punitive damages has been clearly articulated by the Vermont Supreme
Court in Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc, 2010 VT 33. To be entitled to punitive
damages, a party must establish both “malice, defined variously as bad motive ill will personal
spite or hatred, reckless disregard and the like,” as well as “wrongful conduct that is
outrageously reprehensible.” Jd. ¥ 18.
In a case decided by a three justice panel of the Vermont Supreme Court, the trial court
awarded punitive damages of $5,000 (in addition to compensatory damages) to Plaintiffs when
Defendant, without the Plaintiffs’ knowledge and for purposes of water management on his own
land, had dug a substantial trench clearly on Plaintiffs’ land that changed water flow on
Plaintiffs’ land and cut a channel up to three feet wide and caused trees to fall in toward the
channel. The Vermont Supreme Court reversed the award of punitive damages.
The facts here are more egregious than those present in Fly Fish in that
[Defendant] directed a trench to be dug on land that clearly belonged to
[Plaintiffs]. Yet while [Defendant’s] acts were deplorable and interfered with the
[Plaintiffs’] property rights, its conduct, like that in Fly Fish, does not rise to the
level of “wrongful conduct that is outrageously reprehensible.” Jd. { 18. As we
explained in Fly Fish, an “indifference to plaintiffs’ rights. . .is not determinative
of malice.”
Oakley v. Victory in Jesus Ministries, Inc. et al, No. 2009-295, slip op. at 6 (Vt. July, 2010).
While it is the decision of a three justice panel and not precedent, it illustrates the likely
application of the F/y Fish standard to the facts in this case.
It is Plaintiffs’ burden to respond to the Undisputed Facts submitted by Defendants with
facts that are sufficient to satisfy the malice element needed for an award of punitive damages,
and the court finds that this has not occurred. Therefore, the motion for summary judgment is
granted as to Plaintiff's claim for punitive damages.
Electronically signed pursuant to V.R.E.F. 9(d) on June 1, 2021 at 1:03 PM.
Mary ifs Teachout
Superi@-Court Judge
Entry Regarding Motion Page 2 of 3
167-10-17 Ancv Moncrief et al vs. McBride et al