Houle v. Quenneville

Annotate this Case

Houle v. Quenneville (2000-034); 173 Vt. 80; 787 A.2d 1258

[Filed 09-Nov-2001]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 2000-034

Charles and Eileen Houle Supreme Court

On Appeal from
v. Washington Superior Court

Kevin Quenneville and Louisa Lewis December Term, 2000

Mary Miles Teachout, J.

John F. Nicholls and David H. Gregg of Abare, Nicholls & Associates, P.C.,
Barre, for Plaintiffs-Appellees.

John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for
Defendants-Appellants.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J. Tenants Kevin Quenneville and Louisa Lewis, appeal the
order granting landlords Charles and Eileen Houle possession at the
expiration of the rental term. Tenants contend: (1) landlords' notice of
nonrenewal of their lease was insufficient because landlords did not
provide the Vermont State Housing Authority (VSHA) with a contemporaneous
copy of the notice; (2) the court failed to properly allocate the burden
of proof on tenants' retaliatory eviction defense; and (3) the court erred
in finding that the evidence was insufficient to support a retaliatory
eviction. Because the requirements for notice to the VSHA do not apply to
a notice of nonrenewal of a lease and the court properly found that
tenants had failed to sustain their burden of proving their affirmative

retaliatory eviction defense, we affirm.

On November 3, 1998, landlords and tenants executed a written rental
agreement regarding the rental of an apartment in Barre, Vermont. The
tenancy was subsidized by Section Eight housing assistance administered by
the VSHA, and the parties also executed a VSHA owner-occupant lease. The
term written in the lease was from November 3, 1998, to October 31, 1998.
The court found that the intended expiration date of the lease was October
31, 1999. A provision of the VSHA lease provided that after the initial
term "this Lease will renew on a month-to-month basis, unless the Owner
[landlord] gives notice to the Tenant of Owner's intent not to renew the
Lease."

Tenants took possession of the apartment on or about November 3, 1998.
Shortly after taking occupancy, tenants discovered some problems,
including an inadequate supply of hot water, a running toilet, leaking
shower hose, falling window glazing, and a roll of carpet matting and other
debris on the back porch. Tenants notified landlords of the problems.
Landlords did not immediately correct the problems, and on March 28, 1999,
tenants mailed a letter to landlords detailing the infirmities and
informing landlords that tenants would withhold their rent if landlords
did not contact tenants within twenty-four hours to make arrangements to
resolve the problems. Upon receiving the note, landlords confronted
tenants and threatened to bring an action against them for violating the
lease by disturbing other tenants. Landlords stated that they would only
repair the toilet and asked tenants to voluntarily terminate the lease.
Subsequently, landlords served tenants with a notice to vacate the
premises by April 30, 1999, asserting tenants had harassed other tenants in
violation of the lease. Upon delivering the notice, the sheriff changed
the vacate date to May 8, 1999. Tenants then contacted the
Building/Electrical Inspector for the City of Barre complaining about the
problems with the apartment. After inspecting the premises, the inspector
notified

landlords that the debris on the porch landing constituted a fire hazard
and must be removed.

Tenants did not quit the premises on April 30, or May 8, 2000, and
landlords commenced an eviction action alleging tenants had violated the
terms of the VSHA lease by disturbing other tenants. Tenants answered
landlords' eviction complaint by denying that they had breached the terms
of the rental agreement and raising the affirmative defenses that: (1)
pursuant to 9 V.S.A. § 4467(b), notice to terminate tenancy for breach of
the rental agreement must be served on the tenant at least thirty days
before the termination date specified in the notice; and (2) the attempted
eviction was in retaliation for tenants' actions in reporting health and
safety code violations and other lawful activity by tenants to enforce
landlords' obligation to maintain premises in a safe and sanitary
condition.

Trial was set for July 7, 1999, but was continued on tenants' motion
because discovery was not complete and landlords had recently retained
counsel. Trial was rescheduled for October 8, 1999. On September 24,
1999, landlords served tenants with a written notice of intent not to renew
the lease at its expiration on October 31, 1999. By this time, landlords
had repaired many of the problems with the apartment, including the broken
windows and shower and removed the carpet matting and debris from the
porch. At a pre-trial conference on September 27, 1999, the parties
agreed to a continuance. The entry order of that date summarizing the
reason for the continuance notes: "[tenants'] lease expires at the end of
October and they have been given notice to leave. If they leave, no
issue. If not, there will be new issues. [Landlords] will notify court of
dismissal if [tenants] leave."

Tenants did not vacate the apartment, and the matter came to trial on
December 15, 1999. The court granted landlords' motion to amend their
complaint to seek possession based on nonrenewal of the lease and the fact
that tenants were holding over after the lease term. Tenants

asserted that notwithstanding landlords' withdrawal of their eviction
claim, the defense of retaliatory eviction was applicable to landlords'
claim for possession based on nonrenewal because landlords still possessed
a "retaliatory motive" for seeking to terminate tenants' possession of the
apartment. Tenants also argued that landlords' September 24, 1999, notice
of nonrenewal to tenants was defective because landlords did not provide
VSHA with a contemporaneous copy of the notice.

The court concluded that the September 24, 1999 notice of nonrenewal
was sufficient because the VSHA requirement that it receive a copy of
landlords' notice to tenants is triggered only when landlords have
initiated a complaint for eviction or other court action that would
terminate a tenancy before the expiration of the lease. The court also
concluded that to the extent VSHA required a contemporaneous notice of a
court action, in the instant case, the requirement was satisfied by the
presence of a VSHA representative at the December 15, 1999 hearing. The
court further determined that landlords, although originally seeking to
evict tenants in retaliation for tenants' threat to withhold rent and
notify authorities about problems with the premises, did not have a
retaliatory motive in deciding not to renew tenants' lease. The court
emphasized the fact that most of the repairs had been completed and
landlords had elected not to proceed with their eviction case, seeking
instead possession based on tenants holding over after the expiration of
the lease term.

I. Notice of nonrenewal

Tenants first challenge the court's conclusion that landlords were not
required to serve VSHA with a contemporaneous notice of their intent not
to renew the lease. Tenants assert that neither landlords' April 1, 1999
notice to terminate the tenancy on good cause grounds, nor the September
24, 1999 notice of nonrenewal was served on VSHA, and therefore, landlords
failed to terminate the tenancy as required under the VSHA lease. In the
original eviction action precipitated by the April

1, 1999 good cause notice to terminate, tenants failed to allege
insufficiency of the notice based on failure to serve a contemporaneous
copy on VSHA. At trial, tenants' claim regarding failure to serve a
contemporaneous notice on VSHA was limited to the September 24, 1999 notice
of nonrenewal. Tenants have waived their claim that the April 1, 1999
notice was insufficient because it was not served on VSHA. See In re
M.M., 159 Vt. 41, 44, 613 A.2d 713, 715 (1992) (failure to raise arguments
below amounts to a waiver).

Moreover, the court granted landlords' motion to amend its complaint
to abandon the original eviction action and to proceed on the action for
possession based on nonrenewal of the lease. At trial, tenants conceded
that the insufficiency of the earlier notice had no relevance to the case
in light of the court's ruling granting the amendment. Tenants have
chosen not to appeal that part of the court's decision, and we will not
disturb it here.

Regarding the September 24, 1999 notice of nonrenewal letter, tenants
argue that it was invalid because Paragraph 13(b) of the VSHA
owner-occupant lease unambiguously requires a landlord to serve tenant and
VSHA with notice whenever a landlord seeks to terminate a tenancy for any
reason. Paragraph 13 provides, in pertinent part:

13. Owner Termination Notice:
A. Notice of grounds. The Owner [landlord] must give the Tenant a
notice that specifies the grounds for termination of tenancy. The
notice of grounds must be given at or before commencement of the
eviction action. The notice of grounds may be included in or may
be combined with any Owner eviction notice to the Tenant.
B. State or local eviction notice. Owner eviction notice means
notice to vacate, or a complaint or other initial pleading used
under State or local law to commence an eviction action. The
Owner must give the [VS]HA a copy of any Owner eviction notice to
the Tenant at the same time the Owner gives notice to the Tenant.

VSHA Owner-Occupant Lease, Paragraph 13 (emphasis added). The plain
meaning of the lease

provision demonstrates its applicability only to eviction actions or
actions to remove the tenant and terminate the tenancy on sufficient
grounds during the lease term. In re West, 165 Vt. 445, 450, 685 A.2d 1099, 1103 (1996) ("When an agreement is clear and unambiguous, the plain
meaning of the agreement governs its interpretation."). Indeed, the VSHA
lease distinguishes between termination of the tenancy during the lease
term and termination at the expiration of the lease term. During the term
of the lease, the owner may terminate the tenancy only for (1) serious and
repeated violations of the conditions of the lease; (2) violations of
state, federal or local laws regarding the obligations of the tenant; (3)
criminal activity or (4) other good cause. VSHA Owner-Occupant Lease,
Paragraph 12(A). The VSHA lease specifically excludes termination for
nonrenewal from the requirements attending termination for good cause
grounds. The VSHA lease provides:

The requirement to terminate tenancy for such grounds:
1. Only applies during the term of the Lease, including
the initial term and any extension term; and
2. Does not apply if the Owner terminates the tenancy at
the end of the initial term, or at the end of any successive
definite term.

Id., Paragraph 12(A).

Paragraph 13, covers the notice requirement for termination of the
tenancy on good cause grounds during the term of the lease. The notice
provision for terminating the tenancy after the lease term, however, is
governed by Paragraph 3 which sets out the original lease term, then
provides: "Thereafter, this Lease will renew on a month-to-month basis,
unless the owner gives notice to the Tenant of Owner's intent not to renew
the Lease." VSHA Owner-Occupant Lease, Paragraph 3. There is no
requirement that VSHA receive a copy of the notice of nonrenewal,
contemporaneous or otherwise. Any other construction would render
Paragraphs 3 and 12 meaningless. In construing

contracts, we must conclude that the parties included provisions for a
reason. Blodgett Supply Co. v. P.F. Jurgs, 159 Vt. 222, 232, 617 A.2d 123, 128 (1992) (citing Vermont State Colleges Faculty Federation v.
Vermont State Colleges, 141 Vt. 138, 143, 446 A.2d 347, 349 (1982)
(contract must be construed, if possible, to give meaning to all its
provisions). (FN1)

We agree with the trial court that the VSHA lease did not impose upon
landlords the additional obligation to serve a contemporaneous copy of the
notice of nonrenewal on the VSHA. The lease executed between the parties
required landlords to provide tenants with thirty days of their intent not
to renew. The September 24, 1999, notice of nonrenewal, provided tenants
with more than thirty days notice that the lease would not be renewed at
the expiration of its term on October 31, 1999. Accordingly, we agree that
the notice of nonrenewal was adequate.

II. Retaliatory eviction defense

Tenants claim that although the court correctly determined that the
retaliatory eviction defense applies to termination of tenancies based on
nonrenewal of the lease, the court erroneously assigned to tenants the
burden of proving the defense. Landlords counter that the court erred in
considering the defense at all, arguing that "[e]ssentially, in connection
with an action for possession upon expiration of a lease, the defense of
retaliatory eviction goes away." For the reasons set forth below, we
conclude that the court correctly found the defense of retaliatory eviction
applicable to the facts of this case, and properly allocated the burden of
proof.

A. Applicability of the retaliatory eviction defense

The prohibition against retaliatory conduct is set out in 9 V.S.A. §
4465, which provides as follows:

(a) [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.
(b) If the landlord acts in violation of this section, the tenant
is entitled to recover damages and reasonable attorney's fees and
has a defense in any retaliatory action for possession.

(emphasis added). The alleged retaliatory conduct in this action is the
notice of nonrenewal of the lease landlords served on tenants during the
initial term. The retaliatory conduct prohibited by the statute is not
limited to eviction actions or otherwise restricted by modifiers to the
term "action." The statutory language, prohibiting an action or threat of
an action, is sufficiently broad and evinces the legislative intent to
prohibit the nonrenewal of a fixed term lease and resultant summary
proceedings instituted at the expiration of such a lease as reprisal for
statutorily protected tenant activity.

Such a construction is consistent with the recommendation of the
Restatement which includes nonrenewal of a lease as retaliatory conduct.
Restatement (Second) of the Law of Property § 14.9 (1977) (retaliatory
action against a tenant includes refusing to renew a tenancy for a
specified term when that term ends). Following the Restatement, the
Arizona Court of Appeals has also held that

the retaliatory eviction defense extends to summary proceedings instituted
at the expiration of a fixed term lease. Van Buren Apartments v. Adams,
701 P.2d 583, 586-87 (Ariz. 1985). The Arizona statute at issue in Van
Buren specifically prohibits retaliation "by bringing or threatening to
bring an action for possession." Id. at 584. Although our statute does
not expressly apply to actions for possession, as noted above, by not
limiting or defining the types of actions prohibited, the prohibition in
the Vermont statute necessarily includes actions for possession.
Accordingly, we adopt the holding of the Van Buren court. See also Troy
Hills v. Fischler, 301 A.2d 177, 181 (N.J. Super. Ct. Law Div. 1971)
(statute's retaliatory conduct prohibition includes failure to renew a
lease).

In so holding we find unpersuasive the contrary rule adopted by some
sister state courts that the defense of retaliatory eviction is not
available at the expiration of a fixed term lease, Frenchtown Villa v.
Meadors, 324 N.W.2d 133, 135 (Mich. Ct. App. 1982) (landlord's motivation
in seeking repossession or declining to renew its fixed-term lease was not
a defense to a summary proceeding instituted at the expiration of the
fixed term lease), or to holdovers, Groton Townhouse Apartments v.
Covington, 448 A.2d 221, 222 (Conn. 1982) (retaliatory eviction defense
does not extend to summary eviction proceedings at the termination of a
tenancy where tenants were holding over).

The decision in Frenchtown Villa turned on the court's interpretation
of the Michigan eviction statute, which "precludes a judgment for
possession for an alleged termination of a tenancy where the termination
was intended primarily as a penalty for the defendant's [tenant's] attempt
to secure or enforce legal rights." Frenchtown Villa, 324 N.W.2d at 135.
Because a fixed term lease automatically expires at the end of the term,
"a landlord seeking repossession of premises upon the expiration of the
term of a fixed lease does not terminate the tenancy, but merely seeks
repossession pursuant to the termination that has otherwise taken place."
Id. at 135. In reaching its decision, the

Michigan Court of Appeals realized that its holding would "effect[] a
severe limitation upon the retaliatory eviction defense," but felt
constrained by the language of the retaliatory eviction statute. Id. at
136.
In Vermont, we have no such limitation. Our state's retaliatory
eviction statute guards against retaliatory conduct which includes
threatening or bringing an action. The present action is also factually
distinguishable from Frenchtown Villa. The term lease here did not
automatically expire at the end of the fixed term. Instead, both leases
obligated landlords to notify tenants of their intent not to renew or the
lease would automatically renew, either under the same terms, according to
the parties' lease, or on a month-to month basis, pursuant to the VSHA
lease.

The Groton reasoning is similarly unpersuasive. The Connecticut
retaliatory eviction statute prohibits a landlord from, inter alia,
maintaining "an action or proceeding against a tenant to recover
possession of a dwelling unit." Conn. Gen. Stat. § 47a-20(1994). The
action under review in Groton was landlord's filing of its summary process
complaint seeking possession. At the time of the filing, the tenancy had
terminated, and the defendants were improperly holding over and no longer
qualified as tenants as that term is defined under Connecticut's landlord
tenant statute. Because the retaliatory eviction statute prohibits a
landlord from evicting tenants, and the Groton defendants no longer
satisfied the definition of tenants, the court reasoned they were no longer
entitled to the defense. Groton, 448 A.2d at 222.

Here, however, the alleged retaliatory action which precipitated the
defense is the notice of nonrenewal which was served during the initial
term. At that time, tenants were not holdovers, but were holding pursuant
to a valid lease. Accordingly, tenants still qualified as tenants, see 9
V.S.A. § 4451(9) ("'tenant' means a person entitled under a rental
agreement to occupy a residential

dwelling unit to the exclusion of others"), and were eligible to assert the
retaliatory eviction defense. The protected activity, or complaints
regarding the condition and safety of the premises and contacting the city
housing inspector, likewise occurred during the initial term. Under the
Vermont statute, landlords could not threaten an action as a reprisal for
this protected activity. 9 V.S.A. § 4465.

Vermont's retaliatory eviction statute contemplates that the tenant's
protected activity will precede the landlord's retaliatory action. 9
V.S.A. § 4465 (landlord may not retaliate against a tenant who has engaged
in certain protected activity). In a case like this, where tenants invoke
the defense in response to a notice of nonrenewal of a fixed term lease,
tenants' protected activity must precede the notice of nonrenewal and
expiration of the lease term. Limiting the availability of the defense to
cases where tenants' protected activity occurs during the lease term,
protects landlords from "the need to litigate the tenant's intent to
frustrate a nonretaliatory termination by engaging in protected activities
subsequent to receipt of the notice of eviction or termination." Voyager
Village Ltd. v. Williams, 444 N.E.2d 1337, 1346 (Ohio Ct. App. 1982)
(where notice of termination of tenancy precedes the tenant's engaging in
protected activities, retaliatory eviction defense is unavailable).

B. Application of the retaliatory eviction defense

Tenants contend that in allocating the burden of proof, the trial
court failed to follow the Court's direction in Gokey v. Bessette, 154 Vt.
560, 580 A.2d 488 (1990). In Gokey, we held that the retaliatory eviction
statute, 9 V.S.A. § 4465(a)(2), did not contemplate use of a subjective
test for evaluating what is retaliatory conduct. Id. at 564, 580 A.2d at
491. We reasoned, "[a] subjective test would effectively establish such a
high burden of proof for tenants that the benefit the Legislature intended
to confer would be an illusion." Id. Contrary to tenants' claim here,
Gokey

did not relieve tenants of their burden to prove a retaliatory eviction.
Instead, it relieved tenants of the obligation to establish retaliation by
proving landlords' subjective intent. Gokey imposed an objective test for
evaluating "what is and is not retaliatory." Under this test, tenants can
rely on the surrounding facts and circumstances to fulfill their burden of
proving retaliatory eviction. Id., 580 A.2d at 491.

Nevertheless, tenants argue that the court's conclusion that
retaliatory eviction "is a statutory defense," and therefore, "it is the
defendants' burden to prove the defense," is erroneous. Retaliatory
eviction can be raised as a separate cause of action entitling tenants to
damages and attorney's fees or as a defense. 9 V.S.A. § 4465(b). In the
present action, tenants raised retaliatory eviction as an affirmative
defense. As the party asserting the affirmative defense, tenants have the
burden of proving that defense. See V.R.C.P. 8(c); Western Land Office,
Inc. v. Teresa Cervantes, 220 Cal. Rptr. 784, 789 (Cal. Ct. App. 1985)
(the tenant claiming the landlord is guilty of wrongdoing has burden of
proving retaliatory eviction).

Tenants rely on cases from other jurisdictions as support for their
argument that landlords have the burden to disprove the retaliation claim
or produce evidence of another legitimate, nonretaliatory motive. The
cases relied on by tenants, however, interpret statutes and ordinances that
codify a presumption of retaliation once a notice to vacate or quit follows
a tenant complaint. See, e.g., Youssef v. United Management Co., 683 A.2d 152, 154 (D.C. 1996) (statute imposes burden on landlord to come forward
with clear and convincing evidence to rebut the presumption of retaliatory
action); Hillview Associates v. Bloomquist, 440 N.W.2d 867, 871 (Iowa 1989)
(in an action by or against the tenant, evidence of a complaint within six
months prior to the alleged act of retaliation creates a presumption that
the landlord's conduct was in retaliation); Perreault v. Parker,

490 A.2d 203, 205 (Me. 1985) (a presumption of retaliation by the landlord
arises if within six months prior to the commencement of the action, the
tenant has made a good faith complaint of conditions affecting health and
safety of apartment and no writ of possession may issue in the absence of
rebuttal of the presumption of retaliation); Barnes v. Weis Management
Company, 347 N.W.2d 519, 521 (Minn. 1984) (statute imposes burden of
proving nonretaliatory purpose on landlord if notice to quit was served
within ninety days of the date of any act of the tenant to secure or
enforce contract or statutory rights or good faith reporting to a
governmental authority); Parkin v. Fitzgerald, 240 N.W.2d 828, 831 (Minn.
1976) (applying Minnesota statute); Fromet Properties, Inc. v. Buel, 684 A.2d 83, 90-91 (N.J. Super. Ct. App. Div. 1996) (statute creates a
presumption of a retaliatory motive under certain circumstances); Cornell
v. Dimmick, 342 N.Y.S.2d 275, 279 (N.Y. City Ct. 1973) (holding city
ordinance states that receipt of notice to quit a dwelling creates a
rebuttable presumption that such notice is a reprisal against the tenant
for making a complaint to city officials about code violation); Karas v.
Floyd, 440 N.E.2d 563, 566 (Ohio Ct. App. 1981) (statute shifts burden to
landlord once the tenant has shown that the landlord's decision to evict
was in response to the tenant's complaints regarding housing code
violations).

Tenants urge this Court to read into Vermont's retaliatory eviction
statute a presumption of retaliation or some other burden shifting
provision. The legislative history of the statute, however, does not
support their contention. The first draft of the legislation establishing
the rights, obligations and remedies of landlords and tenants under
residential agreements, now contained in Title 9, Chapter 137, included
such a presumption. As originally drafted in 1985, House Bill 339, the
source legislation of the current statute, contained the following
provision in subdivision (b):

In an action by or against the tenant, evidence of an act listed
in subsection (a) [containing protections identical to those
found currently in 24 V.S.A. § 4465(a)((1)-(3)] of this section
within three months before the alleged act of retaliation creates
a presumption that the landlord's conduct was in retaliation
unless and until credible evidence is introduced which would
support a finding of legitimate purpose for the action. Such
evidence includes but is not limited to inflation, increases in
municipal taxes, fees and assessments, utilities, fuel and costs
of amortizing improvements. The presumption does not arise if
the tenant made the complaint after notice of a proposed rent
increase or diminution of services. (FN2)

1985, H.R. 339 (Vt., Bien. Sess.) This provision was deleted by the House
Judiciary Committee before it was passed to the Senate for consideration.
House Cal. 275-287 (Feb. 26, 1986, Vt., Adj. Sess.); Sen. Jour. 569 (April
22, 1986, Vt. Adj. Sess.). The presumption of retaliation provision was
not revived in the version of H.R. 339 finally enacted by the General
Assembly. 1985, No. 175 (Vt. Adj. Sess.), § 1.

The Legislature's deliberate omission of a retaliatory presumption
evinces its rejection of altering the burden of proof for the affirmative
defense of retaliatory eviction in 24 V.S.A. § 4465. See State v.
Cattanach, 129 Vt. 57, 60, 271 Vt. 828, 829-30 (1970). We refuse to insert
into the statute a presumption expressly rejected by the Legislature.
See Shea v. Pilette, 108 Vt. 446, 450, 189 A. 154, 156 (1961) (the courts
are not at liberty to supply that which the law makers have advertently
omitted) (quotations omitted). See also Western Land Office, 220 Cal. Rptr. at 789-90. (By specifically discarding a rebuttable presumption in
favor of the tenant, the Legislature left on the tenant the burden of
proving retaliatory eviction by a preponderance of the evidence.).

Accordingly, we hold that the court correctly assigned to tenants the
burden of proving their affirmative defense of retaliatory eviction.

III. Finding of no retaliation

Finally, tenants contend that the court's finding that the notice of
nonrenewal was not retaliatory was clearly erroneous. We will affirm the
trial court's finding of fact "unless, viewing the evidence in the light
most favorable to the prevailing party and excluding the effect of
modifying evidence, a finding is clearly erroneous." Semprebon v.
Semprebon, 157 Vt. 209, 214, 596 A.2d 361, 363 (1991). Tenants insist
that the record supports only one finding: that landlords acted with
retaliatory intent in serving tenants a notice of nonrenewal in September
1999. In support of their claim, tenants' repeatedly prevail on the Court
to review the landlords' actions surrounding the notice to vacate during
the lease term in April 1999. Tenants argue that because the court found
that landlords had a retaliatory motive in March and April 1999, they
necessarily had that motive almost six months later in late September
1999, when landlord's served their notice of nonrenewal.

The court properly considered all the facts and circumstances
surrounding the interactions between the parties and found no retaliation
for the nonrenewal. See Gokey, 154 Vt. at 564, 580 A.2d at 491
(resolution of the defendant's retaliatory eviction defense requires an
evaluation of all the facts and circumstances between the parties). The
court considered landlords' actions after the April 1999 notice to vacate
in determining whether landlords maintained a retaliatory motive.
Important to the trial court was the fact that landlords had completed
most of the repairs of which tenants complained. Indeed, landlords
removed the one problem affecting health and safety - the debris on the
landing/fire escape. Landlords also repaired the windows and showers.
Courts that impose the burden on landlords to rebut a retaliatory
presumption have held that once repairs are

made, the retaliatory eviction defense is removed. See, e.g., Robinson v.
Diamond Housing Corporation, 463 F.2d 853, 865 (D.C. 1972) (a landlord can
rebut retaliatory intent by evidence it has brought premises up to housing
code and seeks to evict for some other lawful reason); Cornell v. Dimmick,
342 N.Y.S.2d at 279 (1973) (once heating system is put in good working
condition, the defense of retaliatory eviction will no longer be available
to the tenant).

The court also noted that despite tenants' initial threat to withhold
rent, they had not done so and landlords had abandoned their attempt to
evict tenants during the lease term. Absent a showing that these findings
were not supported by credible evidence or that the trial court abused its
discretion, the findings must stand. Gokey, 154 Vt. at 564, 580 A.2d at
491. Although tenants argue strenuously that evidence which led the trial
court to conclude that landlords had a retaliatory motive in initiating
the original eviction action should have also led the court to conclude
that the motivation never changed, the court was not persuaded.
Determination regarding the persuasive effect of evidence is for the trial
court, and will stand if supported by credible evidence. Gallagher v.
McCarthy, 148 Vt. 258, 263, 532 A.2d 557, 559-60 (1987).

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. Tenants attempt to buttress their argument that landlords were
required to serve VSHA with a contemporaneous notice of nonrenewal by
reference to cases from other courts construing the federal regulation,
"that previously applied to Section 8 tenancies." At the time the parties
entered into the rental agreement, however, the regulation no longer
applied. Instead, the regulations in effect, at the time the parties
entered into the rental agreement and at the expiration of the tenancy,
required that landlords serve only the tenants. 24 C.F.R. § 882.511 (1998)
& (1999).

FN2. The Bill was introduced in the House on March 1, 1985. House Jour.
202 (March 1, 1985, Vt. Adj. Sess.). On February 26, 1986, Representative
Batten of Hardwick recommended that the Bill be amended by striking all
text after the enacting clause and replacing it with a draft that more
closely resembles the current statute, omitting the rebuttable presumption
language. House Cal. 275 (February 26, 1986, Vt. Bien. Sess.).

------------------------------------------------------------------------------
Concurring and Dissenting

No. 2000-034

Charles and Eileen Houle Supreme Court

On Appeal from
v. Washington Superior Court

Kevin Quenneville and Louisa Lewis December Term, 2000

Mary Miles Teachout, J.

John F. Nicholls and David H. Gregg of Abare, Nicholls & Associates, P.C.,
Barre, for Plaintiffs-Appellees.

John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for
Defendants-Appellants.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J., concurring and dissenting. I agree with the Court's
holding in every respect except for the last issue, which decides the case
against the tenants and upholds their ultimate eviction from Section 8
housing. I agree with the tenants that, on the face of the record and the
facts as found by the trial court, the conclusion was inescapable that the
landlords sought eviction in retaliation for complaints filed by the
tenants. Therefore, I respectfully dissent from part III of the Court's
opinion.

Closing arguments reveal that, because the landlords amended the
complaint on the day of trial to a claim for nonrenewal of the lease, the
tenants had to fight to keep the issue of retaliatory

eviction in the case. The trial court was not convinced that the defense
should be allowed on the nonrenewal ground. Rather than face the legal
issue, however, the trial court accepted the defense in theory and simply
concluded it had not been proved. As a consequence, the trial court gave
short shrift to this issue. It found that there was a retaliatory motive
on April 1, 1999, when the first notice to quit was issued, but that the
"evidence does not support a finding that as of September 24, 1999 [second
notice to quit], the motive of the plaintiff was a retaliatory one. At
this time many of the repairs had been completed....[a]nd three days later
the plaintiffs waived their opportunity for a trial to proceed with their
eviction case."

As we have found in the majority opinion, a defense of retaliatory
eviction is a question of fact in every case, and our standard of review
is deferential on the trial court's findings of fact; nevertheless, the
conclusion must follow from the facts as found. Begins v. Begins, 168 Vt.
298, 303, 721 A.2d 469, 471 (1998); Bisson v. Ward, 160 Vt. 343, 350-51,
628 A.2d 1256, 1261 (1993).

In judging motive in a retaliatory eviction case, the inquiry is an
objective one. As we stated in Gokey v. Bessette, 154 Vt. 560, 564, 580 A.2d 488, 491 (1990), "[w]hile animus and bad motive may properly be
considered in evaluating what is 'retaliatory,' the statute does not
contemplate use of a subjective test. A subjective test would effectively
establish such a high burden of proof for tenants that the benefit the
Legislature intended to confer would be an illusion. In determining what
is and is not retaliatory, the events must speak for themselves." Under an
objective view of the facts, the trial court's conclusion that the
eviction was not retaliatory does not withstand analysis.

The court's apparent theory was that while the requests for repairs
were outstanding, the landlords thought they could avoid the repairs by
evicting the tenants. When that did not work, and the City of Barre got
involved, the landlords made the repairs. Despite its finding that the
original

notice to quit was retaliatory, the court had to conclude that the
retaliatory motive vanished after the landlords were forced to spend money
on the apartment. The making of repairs does not provide any support for
the conclusion that the landlords no longer had a motive to retaliate. In
the absence of other evidence, the contrary is true because the landlords
have suffered a detriment, and the successful action by these tenants
could very well encourage others to complain about conditions. Landlords
had every reason to evict for an improper purpose and advanced no reasons
other than expiration of the lease, to meet tenants' claim of retaliation.

Nor does the fact that the landlords gave up a trial date for the
eviction support the court's conclusion. As outlined by the majority,
this eviction action began in May 1999. The tenants raised affirmative
defenses, including retaliation. Trial was set for July 7, 1999, but was
continued for reasons of discovery and because the landlords had recently
retained counsel. Trial was rescheduled for October 8, 1999. On
September 24, 1999 the landlords changed the ground of the eviction by
issuing a notice to quit based on nonrenewal of the lease on October 31,
1999. The case was continued on September 27, 1999 by agreement of the
parties because the hope was that the tenants would leave at the
expiration of the lease. The tenants did not leave and the matter came to
trial on December 15, 1999. At that time, the court granted the
landlords' motion to amend their complaint to seek possession on the
ground of nonrenewal. In other words, the parties proceeded on the same
eviction action, but the grounds were amended on the day of trial. If
anything, the procedural history of the case showed the steadfastness with
which the landlords wanted the tenants out. It strains credulity to
conclude that their motive changed between April and September. The only
thing that changed was that the landlords hired counsel, who changed the
legal ground of the complaint.

Moreover, the change of motive defense was raised by the trial court,
not the landlords. Their

position throughout was that their motive for the eviction was irrelevant
because the lease had expired and tenants were barred from raising
retaliatory eviction as a defense. Not surprisingly, the landlords
offered no evidence to rebut the case. Although it was the tenants'
burden to prove retaliation, they more than made out their prima facie
case by the objective facts surrounding the first notice to quit and the
subsequent disagreements over repairs. The trial court agreed that the
first notice to quit was retaliatory. No other evidence-the fact that
repairs were made and the trial date continued-undercut the tenants' case.
To the extent the court's determination that the landlord had no
retaliatory motive on September 24th is a finding of fact, it is
unsupported by the evidence and clearly erroneous. Therefore, because the
landlords raised no defense to the retaliation, judgment should have been
entered for the tenants.

It is distressing that the tenants have won the battle, but lost the
war, and lost their section 8 housing because they complained, contrary to
the protection of the statute (9 V.S.A. § 4465) that we have just
affirmed. I would reverse and enter judgment for the tenants.

I respectfully dissent. I am authorized to state that Justice Dooley
joins in this dissent.

_______________________________________
Associate Justice

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.