Atwood v. Hill ( 2024 )

Termont Superior Court
Filed 09/05/2
Rutland GAR
VERMONT SUPERIOR COURT Ky CIVIL DIVISION
Rutland Unit Case No. 24-CV-01091
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org
Kaylee Atwood v. Leland Hill, Jr. et al
FINDINGS AND ORDER
This is an ejectment action brought by Kaylee Atwood against defendants Leland Hill and
Kimberly MacJarrett. The defendants brought a counterclaim against the plaintiff alleging retaliation,
discrimination, habitability, intentional infliction of emotional distress, violation of the consumer fraud act,
and failure to return the security deposit. The court held a final hearing in this matter on August 14, 2024.
Prior to the hearing, the defendants had vacated the property, so plaintiffs only remaining claims was for
damages. All parties represented themselves at the hearing. The court makes the following findings of
fact based upon a preponderance of the evidence.
Findings of Fact
Kaylee Atwood owns real property located at 264 Furnace Street in Pultney, Vermont. The parties
executed a written lease agreement on December 1, 2023. The lease expired on March 1, 2024.' Pursuant
to the lease, defendants were required to pay the plaintiff rent in the amount of $1,050 per month, due on
the first of the month. The lease indicated that if rent was not paid within five days of the due date, a late
fee of $250 would be imposed. The lease allows for this late fee to be applied for every day rent is late or
the occurrence that rent was late. Both options are checked on the lease. Defendants provided the
plaintiff a security deposit of $1,050. The lease prohibited defendant from having any pets on the
property.
Defendants resided at the property from December 2023 through June 2024. Although the lease
was signed on December 1, 2023, the defendants did not move into the property until December 15, 2023.
The defendants vacated the property on June 15, 2024. Defendants paid $2,100 on December 15, 2023,
which included the first month's rent and the security deposit. Ex. B-1. Defendants paid $1,050 on
January 15, 2024 for the second month's rent. Id. Defendants paid $1,575 on February 7, 2024 for two
months rent. Ex. B. The plaintiff provided $1,350 in rent credit during the tenancy. This was for work
performed by Mr. Hill and $300 in expenses incurred by the defendants to remove trash from the
property. The total amount of rent paid by the defendants in money and credit was $5,025. In addition,
the defendants gave the plainuff $1,050 as a security deposit. The total amount of rent defendants owed
from December 2023 to June 2024 was $7,350.
' The written lease indicates the lease ends on March
1, 2023. The court presumes this was an error and the parties intended the
original lease to end on March 1, 2024.
?
There was testimony regarding rent being prorated for December as the defendants did not move in until December 2023.
The court's calculation runs from December 15, 2023 through June 15, 2024.
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After the defendants vacated the property in June, the plaintiff observed damages to the property
that had not been there prior to the tenancy. This included damage to a wooden floor, damage to the attic
space, damages to drywall in a ceiling, damages to a wall in the kitchen, and holes in the wall on the third
floor. In addition, plaintiff received a $900 water bill for a spigot that was left on. Plaintiff spent $100 on
flea bombing the property, $50 for trash removal, and $2,000 for having some of the drywall repaired.
Plaintiff is seeking $61,117.96 in damages for property damage, trash removal, unauthorized
painting, back rent, late fees, service fees, emotional distress, harassment, and loss of usage.
Plaintiff testified that after the defendants vacated the property, she sent notice to the defendants
that she was keeping the security deposit due to the damage to the property. Defendants testified they
never received a copy of the notice and plaintiff did not submit a copy of the notice at the hearing.
Prior to renting the property to the defendants, plaintiff told the defendants that there was a leak in
the roof. Plaintiff did not have the roof fixed prior to renting the property to the defendants. Ex. A.
Because the defendants did not move in until December 15, 2023, the parties discussed signing a new
lease. Ex. D. The parties, however, never wrote or signed an amended lease. When the lease was signed,
plaintiff was under the impression that the only tenants would be Mr. Hill, Ms. MacJarrett, and a baby.
Additional children resided at the property and the plaintiff sent Mr. Hill a text message saying, “And you
didn’t mention u had all these kids it was suppose to be u and ur gf and the baby. Start looking for
another place. Once your gone I will work on the place.” Ex. G.
During the written lease agreement prohibiting pets, plaintiff knew that the defendants had dogs
on the property and even asked the defendants if they wanted another dog. Ex. E.
Prior to the defendants moving in, Mr. Hill did some work on the plumbing at the property in
order for the defendants to reside there. Mr. Hill testified that prior to moving in, there was garbage
everywhere, dog feces on the wall, holes in the floor, no running water, and the heating system needed
servicing. Plaintiff testified the house was livable when the defendants moved in. On January 1, 2024, the
defendants informed the plaintiff that the stove was not working. Ex. J. The plaintiff provided the
defendants a replacement stove.
Defendants are seeking double damages for plaintiff’s failure to return their security deposit,
$5,630 in damages from the plaintiff’s testimony in a separate matter, triple damages for a violation of the
consumer fraud act, $5,000 for retaliation, $5,000 for discrimination, $5,000 for intentional infliction of
emotional distress, and $5,000 for health and safety violations for the leaking roof and plaintiff’s refusal to
fix it.
Conclusions of Law
Plaintiff’s Claims
This action is governed by the requirements and terms of Vermont’s Residential Rental
Agreements Act, 9 V.S.A. § 4451 et seq. A “landlord may terminate a tenancy for nonpayment of rent by
providing actual notice to the tenant of the date on which the tenancy will terminate.” 9 V.S.A. § 4667(a).
Actual notice is defined as “receipt of written notice hand-delivered or mailed to the last known address. A
rebuttable presumption that the notice was received three days after mailing is created if the sending party
proves that the notice was sent by first-class or certified U.S. mail.” 9 V.S.A. § 4451(1). The date of
termination shall be at least 14 days after the date of actual notice and at least 30 days after the date of
actual notice if the property is a covered property under the federal CARES act. 9 V.S.A. § 4467(a); 15
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U.S.C. §§ 9058(a)(2) and (c). “If the court finds that the landlord is entitled to possession of the premises,
the plaintiff shall have judgment for possession and rents due, damages, and costs.” 12 V.S.A. § 4854. In
this case, the tenants have vacated the property, thus the court must determine whether the plaintiff is
entitled to judgment for rents due, damages, and costs.
Plaintiff seeks damages for unpaid rent. Based upon the credible testimony, the court finds that
the defendants paid at total of $5,025 in rent, either through credit or actual monies paid. The defendants
resided at the property for seven months and owed rent in the amount of $1,050 per month. The total
rent defendants were obligated to pay was $7,350. Defendants still owe the plaintiff rent in the amount of
$2,325.
Defendants argue they were not required to pay rent due to habitability issues with the property.
The Vermont Supreme Court in Hilder v. St. Peter, held “in the rental of any residential dwelling unit an
implied warranty exists in the lease, whether oral or written, that the landlord will deliver over and
maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.”
144 Vt. 150, 159 (1984). This warranty of habitability is codified in Vermont’s Residential Rental
Agreements Act. 9 V.S.A. § 4457(a). In this case, the defendants allege that the leaking roof breach the
warranty of habitability.
When a landlord breaches the warranty of habitability, a tenant’s remedy is limited by the
Residential Rental Agreements Act, which states:
(a) If the landlord fails to comply with the landlord’s obligations for habitability and, after
receiving actual notice of the noncompliance from the tenant, a governmental entity or
a qualified independent inspector, the landlord fails to make repairs within a reasonable
time and the noncompliance materially affects health and safety, the tenant may:
1.withhold the payment of rent for the period of noncompliance;
2.obtain injunctive relief;
3.recover damages, costs, and reasonable attorney’s fees; and
4.terminate the rental agreement on reasonable notice.
(b) Tenant remedies under this section are not available if the noncompliance was caused
by the negligent or deliberate act or omission of the tenant or a person on the premises
with the tenant’s consent.
9 V.S.A. § 4558. Before a tenant can withhold rent for a breach of the warranty of habitability, the tenant
must 1) provide actual notice of the breach to the landlord and 2) allow the landlord a reasonable amount
of time to cure the breach. Id. Actual notice is defined as “receipt of written notice hand-delivered or
mailed to the last known address. A rebuttable presumption that the notice was received three days after
mailing is created if the sending party proves that the notice was sent by first-class or certified U.S. mail.”
9 V.S.A. § 4451(1).
In this case, the court assumes without deciding that the defendants provided actual notice of the
leaking roof to the plaintiff by sending the plaintiff a text message. Ex. A. It is unclear from the evidence,
however, when this text message was sent. The exhibit itself does not have a date the message was sent
and Mr. Hill did not testify when it was sent either. Tenants are allowed to withhold rent for a breach of
the warranty of habitability only after allowing the landlord a reasonable amount of time to cure the
breach. 9 V.S.A. § 4558. Without knowing the date the notice was sent, the court cannot make any
findings whether the landlord was provided sufficient time to cure the breach prior to the defendants
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withholding rent. The defendants have not met their burden to show they were entitled to withhold rent
due to a breach of the warranty of habitability.
Plaintiff seeks to recover late fees of $250 per day for each day the rent was late. In this case, the
lease indicates the late fee is to be applied for every day rent is late as well as for the occurrence that rent
was late. Both boxes are checked on the lease and are contradictory and that contradiction cannot be
resolved by reading the lease as a whole. “When two provisions of a contract conflict, and we are unable
to resolve this conflict when reading the contract as a whole, then the contract is ambiguous.” Beldock v.
VWSD, LLC, 2023 VT 35, ¶ 40. When a contract is ambiguous, the court “may look to limited extrinsic
evidence of circumstances surrounding the making of the agreement to see if this resolves the ambiguity.”
Id. at ¶ 40 (citations and quotations omitted). There was no testimony presented by the parties on this
contradiction and the court cannot resolve the ambiguity. “When an agreement is ambiguous, the parties’
intent becomes a question of fact.” Id. at ¶ 50. Based upon the evidence presented, the court cannot
conclude what the intent of the parties was regarding the late fee. It is the burden of the plaintiff to prove
her claim and she has failed to prove the late fee was to accrue daily. The plaintiff is not entitled to relief
on this claim.
In addition to damages for rent due, plaintiff seeks compensation for damage to the property that
occurred during the defendant’s tenancy. Plaintiff testified to multiple areas that were damage and
speculated about the cost of repairs. An owner of real property is competent to testify as to the value of
the property. 12 V.S.A. § 1604. An owner cannot testify about repair estimates they receive from third
parties as that would be inadmissible hearsay. State v. Morse, 2014 VT 84, ¶ 13. Although the plaintiff
testified about estimates to repair some of the damage, the court does not consider that testimony. The
testimony the court can consider is the amount of money the plaintiff had already paid to repair damage to
the property. This includes $100 for flea bombing, $50 for trash removal, and $2,000 for drywall repairs.
The court concludes these expenses were in response to damage to the property that went above and
beyond normal wear and tear and the plaintiff is entitled to recover these costs. See Mongeon Bay Properties,
LLC v. Mallets Bay Homeowner’s Ass’n, 2016 VT 64, ¶ 32 (landlords are not entitled to recover damages for
normal wear and tear). Plaintiff also seeks compensation for a $900 water bill. There was insufficient
evidence regarding when the bill was accrued and what caused it. Although plaintiff alleges the bill was
due to a spigot being left open, that conclusory statement is not enough for the court to conclude the
defendants caused the water bill. Plaintiff has proven she is entitled to damages in the amount of $2,150.
Plaintiff seeks compensation for alleged unauthorized painting conducted by the defendants.
There is nothing in the written lease that prohibits defendants from painting the walls of the property.
Plaintiff has not met her burden on this claim.
Plaintiff seeks damages for harassment, emotional distress and loss of usage of the property.
Plaintiff did not provide notice of these claims in her complaint, thus the court cannot grant relief on these
requests. Even if they had been properly noticed in the complaint, plaintiff did not provide evidence
regarding these claims at the hearing. Plaintiff has not met her burden on these claims.
In ejectment cases, “[i]f the court finds that the plaintiff is entitled to possession of the premises,
the plaintiff shall have judgment for possession and rents due, damages, and costs, and when a written
rental agreement so provides, the court may award reasonable attorney’s fees. 12 V.S.A. § 4854. Plaintiff
is entitled to possession of the property, thus is entitled to costs. The cost for filing a complaint in the
Civil Division is $295. 32 V.S.A. § 1431(b)(1). There was no evidence regarding the costs incurred by
plaintiff for service fees. Plaintiff is therefore entitled to $295 for the court costs.
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In summary, plaintiff is entitled to $2,325 for unpaid rent, $2,150 for damages to the property, and
$295 for costs. The total amount of damages owed to the plaintiff is $4,770.
Defendants’ Claims
Defendants first seek double damages due to plaintiff’s failure to return their security deposit. This
claim is governed by the Residential Rental Agreements Act and specifically 9 V.S.A. § 4461(e), which
states:
If a landlord fails to return the security deposit with a statement within 14 days, the
landlord forfeits the right to withhold any portion of the security deposit. If the failure is
willful, the landlord shall be liable for double the amount wrongfully withheld, plus
reasonable attorney’s fees and costs.
The goal of the court in construing a statute is to implement the intent of the Legislature. Miller v. Miller,
2005 VT 89, ¶ 14. “If the intent of the Legislature is apparent on the face of the statute because the plain
language of the statute is clear and unambiguous, we implement the statute according to that plain
language.” Flint v. Dep’t. of Labor, 2017 VT 89, ¶ 5. Under Section 4461(e), if a landlord willfully withholds
a security deposit in violation of the statute, they shall be liable for double the amount wrongfully
withheld, plus reasonable attorney’s fees and costs. “[T]he imperative ‘shall’ generally means that the
provision is mandatory.” State v. Lohr, 2020 VT 41, ¶ 8. Thus, if the court finds that defendants willfully
withheld the security deposit in this case, the court is required to find the defendants liable for double the
amount wrongfully withheld and is required to find the defendants liable for reasonable attorney’s fees and
costs.
A landlord is held to strict compliance with Section 4461 and is explicitly required to “return the
security deposit along with a written statement itemizing any deductions to a tenant within 14 days.” 9
V.S.A. § 4461(c); In re Soon Kwon, 2011 VT 26, ¶ 14. The statute does not define the term willful as applied
to Section 4461. However, the Vermont Supreme Court has stated, “[t]he term ‘wilful’ though given
different definitions under different circumstances cannot well mean less than intentional and by design.”
In re Chase, 2009 VT 94, ¶ 26 (quoting State v. Burlington Drug Co., 84 Vt. 243, 252 (1911)). In other words,
willful “means an act done with intention of purpose, designed and voluntary.” Id. at ¶ 26 (quoting Wendell
v. Union Mut. Fire Ins. Co., 123 Vt. 294, 297 (1963).
In this case, the court finds credible the testimony of Mr. Hill that the defendants did not receive a
written statement itemizing any deductions to the security deposit within 14 days of the termination.
There was conflicting testimony to this, however the plaintiff did not submit a copy of the statement she
sent to the defendants. Furthermore, even accepting plaintiff’s testimony as true that a notice went out,
the plaintiff’s testimony was limited to the security deposit was not going to be returned because of
damages. Such a generic statement does not meet the requirement of an itemization of deductions. The
plaintiff has not strictly complied with the requirements of 9 V.S.A. § 4461(c) and the decision by the
plaintiff to withhold the security deposit was clearly willful. The defendants are entitled to damages in the
amount double the security deposit. Defendants are entitled to $2,100 on this claim.
Defendants seek $5,630 in damages due to plaintiff’s testimony in a separate matter. Defendants
have cited no authority for the court to grant this relief. Assuming the argument is that the plaintiff
perjured herself in that prior case, the defendants have presented no evidence of that alleged perjury. The
defendants are not entitled to relief on this claim.
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Defendants seek $5,000 for discrimination due to the statement by plaintiff stating, “[a]nd you
didn’t mention u had all these kids it was suppose to be u and ur gf and the baby. Start looking for
another place. Once your gone I will work on the place.” Ex. G. Individuals seeking housing are
protected from discrimination by the federal Fair Housing Act (FHA), 42 U.S.C. § 3604(a) and the
Vermont Public Accommodations Act (VPPA, 9 V.S.A. §§ 4500-4507. Under the FHA it is unlawful “[t]o
refuse to ... rent after the making of a bona fide offer, or to refuse to negotiate for the ... rental of, or
otherwise make unavailable or deny, a dwelling to any person because of ... familial status.” 42 U.S.C. §
3604(a). Under the VPPA it is unlawful “[t]o refuse to ... rent, or refuse to negotiate for the ... rental of, or
otherwise make unavailable or deny, a dwelling or other real estate to any person ... because a person
intends to occupy a dwelling with one or more minor children.” 9 V.S.A. § 4503(a)(1). The evidence
presented at the hearing does not show that the plaintiff refused to rent to the defendants because they
have multiple children. The statement of plaintiff alone is insufficient to find any direct evidence of
discrimination.
When there is no direct evidence of discrimination, a party may still prove discrimination under the
burden shifting standards set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). In this
framework, the moving party has the burden to establish a prima facie case of discrimination based upon
circumstantial evidence. Spinette v. University of Vermont, 2023 VT 12, ¶ 16. If the moving party establishes
a prima facie case, the burden shifts to the non-moving party to show the reason for the action was
nondiscriminatory. Id. “To establish a prima facie case of discrimination in this case, plaintiff needed to
show that: (1) she was a ‘member[ ] of a protected class’; (2) she ‘sought and w[as] qualified to rent or
purchase the housing’; (3) she ‘w[as] rejected’; and (4) ‘the housing opportunity remained available to other
renters or purchasers.’” Id. at ¶ 18 (quoting Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003)). In this case,
the defendants have failed to prove they were rejected from housing because of their children. The
statement made by the plaintiff came after the defendants were already tenants. The defendants did not
present any evidence they were rejected by the plaintiff. As such, the defendants have failed to meet their
burden to establish a prima facie case that would shift the burden to the defendant. In addition, the
evidence showed that the plaintiff did not intend to immediately rent the property out after the defendants
vacated. Instead, the plaintiff intended to fix the property and sell it. The defendants are not entitled to
relief on this claim.
Defendants seek $5,000 in damages for a claim of retaliation. The Residential Rental Agreement
Acts prohibits a landlord from engaging in retaliatory action, specifically:
A landlord of a residential dwelling unit may not retaliate by establishing or changing terms
of a rental agreement or by bringing or threatening to bring an action against a tenant who:
(1) has complained to a governmental agency charged with responsibility for
enforcement of a building, housing, or health regulation of a violation applicable to
the premises materially affecting health and safety;
(2) has complained to the landlord of a violation of this chapter; or
(3) has organized or become a member of a tenant's union or similar organization.
9 V.S.A. § 4465(a). Nonrenewal of a lease can qualify as an action under this statute. Houle v. Quenneville,
173 Vt. 80, 88 (2001). Tenants have the burden of proving a retaliatory eviction. Id. at 90-91. In looking
at all the facts and circumstances between the parties as required by Gokey v. Bessette, 154 Vt. 560, 564
(1990), the court cannot conclude the defendants have met their burden to show the nonrenewal of the
lease was retaliatory. As noted above, the court was unable to make findings regarding when the plaintiff
was put on notice of habitability concerns of the defendants. Similarly, the evidence here showed that the
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main concern of the plaintiff was non-payment of rent. Based upon the evidence presented at the hearing,
the court cannot find the defendants have met their burden to prove the plaintiff failed to renew the lease
because of retaliation. The defendants are not entitled to relief on this claim.
Defendants seek $5,000 for intentional infliction of emotional distress. The four essential elements
a party must prove to establish a prima facie case of intentional inflictions of emotional distress are
“outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional
distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the
outrageous conduct.” Sheltra v. Smith, 136 Vt. 472, 476 (1978). Defendants have failed to identify the
plaintiff’s alleged outrageous conduct in this case. More importantly, the defendants failed to present
evidence of their extreme emotional distress at the hearing. Without this requisite evidence, the
defendants cannot meet their burden on this claim. The defendants are not entitled to relief on this claim.
Defendants seek $5,000 for health and safety violations. Specifically, defendants seek damages for
the leaking roof and the plaintiff’s refusal to fix it. Although the defendants proved that they gave notice
of the issue and the plaintiff did not fix it, the defendants did not prove when that notice was sent.
Without that fact established, the defendants cannot meet their burden on this allegation and they are not
entitled to relief on this claim.
Defendants seek triple damages for a violation of the Consumer Fraud Act (CFA). The purpose
of the CFA is “to protect the public against unfair or deceptive acts or practices and to encourage fair and
honest competition.” Sawyer v. Robson, 2006 VT 136, ¶ 12 (citations and quotations omitted). Landlords
are subject to the requirements of the CFA. Id. at ¶ 13. Under the CFA:
Any consumer who ... sustains damages or injury as a result of any false or fraudulent
representations or practices prohibited by section 2453 of this title ... may sue for
appropriate equitable relief and may sue and recover from the seller, solicitor or other
violator the amount of his damages ....
9 V.S.A. § 2461(b). The basis of defendants claim under the CFA is the preexisting leaking roof. The
defendants were aware of the leaking roof when they entered the lease with the plaintiff. This is evident
from the testimony of Mr. Hill and the text message contained within Exhibit A. There was no fraud or
deceit on the part of the plaintiff. The court does not find that the plaintiff promised the roof would be
fixed prior to the tenancy starting. The defendants have not met their burden and they are not entitled to
relief on their claim.
In summary, defendants are entitled to $2,100 on their claim regarding the plaintiff’s failure to
return the security deposit.
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Conclusion
Plaintiff is entitled to damages in the amount of $4,770. Defendants are entitled to damages in the
amount of $2,100. Offsetting the amount owed the defendants, plaintiff is entitled to judgment in the
amount of $2,170.
Electronically signed on September 5, 2024 pursuant to V.R.E.F. 9(d)
__________________________
Alexander N. Burke
Superior Court Judge
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