Lindquist v. Adams

Lindquist v. Adams (2001-178); 174 Vt. 179; 811 A.2d 173

[Filed 23-Aug-2002]


       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. 2001-178


  Evelyn Lindquist	                         Supreme Court

                                                 On Appeal from
       v.	                                 Rutland Superior Court


  Caryl T. Adams	                         May Term, 2002


  Richard W. Norton, J.

  James W. Swift and Abby C. Moskovitz of Langrock Sperry & Wool, LLP,
    Middlebury, for Plaintiff-Appellee.

  Peter H. Banse of Banse & Banse, P.C., Manchester, for Defendant-Appellant.


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

        
       MORSE, J.   Caryl T. Adams appeals from a superior court order
  adopting a commissioners' report partitioning several parcels of land in
  the towns of Fair Haven and West Haven.  Adams argues on appeal that the
  commissioners failed to create a record in support of their report, in part
  due to their actions of undertaking independent investigations of the facts
  and failing to hold a contested hearing with both parties present, and that
  the commissioners' findings are not supported by the record such as it is. 
  Adams also argues that the trial court's order with regard to the
  commissioners' fees should be reversed as unreasonable.  Evelyn Lindquist
  cross-appeals, arguing 

 

  that the trial court erroneously denied her request that the cost of a
  survey relied upon by the commissioners be divided between the parties.  We
  reverse and remand.

       Caryl Adams and Evelyn Lindquist, brother and sister, each own a 50%
  interest in three parcels of land located in the towns of Fair Haven and
  West Haven.  In May 1997,  Lindquist brought an action for partition in
  superior court.  The court appointed three commissioners pursuant to 12
  V.S.A. § 5169, two of whom were selected by Lindquist and Adams, with the
  third selected by the two commissioners selected by the parties.

       On February 16, 1999, the court held a conference with both parties
  present, along with two of the commissioners.  The day of the conference,
  Lindquist filed a motion requesting that the court order a survey of the
  properties, splitting the cost between the parties.  At the conclusion of
  the conference, the court denied Lindquist's motion, holding that, if the
  commissioners subsequently decided a survey was necessary, they should
  notify the court and it would revisit the question.  The court also
  directed the commissioners not to have any ex parte contacts with the
  parties or third parties without notifying Lindquist and Adams and giving
  them an opportunity to be present for the taking of evidence. The court
  suggested the commissioners hold a meeting to determine what evidence would
  be submitted by the parties, whether they could agree to specific
  third-party contacts, whether a survey would be necessary, and whether any
  title work would be necessary to accomplish the partition.  It does not
  appear from the record that such a meeting was held; rather, the
  commissioners sent a letter to the parties soliciting documentary evidence
  and noting that the commissioners would be meeting later that month
  regarding the case.
   
       The next docket entry comes almost a year later, in January 2000,
  noting that a status conference had been scheduled in the case. 
  Apparently, in the intervening time, the commissioners 

 

  had undertaken an independent investigation of the properties, including
  walking the properties on their own, contacting various municipal boards
  regarding the development potential of the parcels, and speaking to an
  individual who had logged portions of the properties in 1995.  The
  commissioners sent a status report to the court indicating their ongoing
  investigations and noting that a survey of at least part of one of the
  properties was necessary to complete the division of the parcels.  The
  status conference was then canceled.  In September 2000, the commissioners
  wrote a letter to the parties' attorneys seeking their legal opinions
  regarding a potential right-of-way to one of the parcels that they had
  uncovered when undertaking a title search of the property.  It is not clear
  how or whether the attorneys responded.  Also some time prior to the
  commissioners' final report, it appears that Lindquist independently
  commissioned a survey of two of the parcels, which she then provided to the
  commissioners. 

       In January 2001, the commissioners submitted their final report to the
  court dividing the properties.  Adams objected to the report and requested
  that the matter be recommitted to the commissioners for further
  proceedings.  Specifically, he contested several specific findings, noting
  that the commissioners had either not taken independent evidence on the
  matters or had not notified him of the taking of such evidence.  He also
  argued that the commissioners had failed to make adequate and detailed
  findings to support their decision so as to allow for review, and, finally,
  that the commissioners had "held no hearings and produced no record of
  their proceedings," thus precluding review. 
   
       The court held a hearing on the matter on February 15, 2001.  After
  hearing argument from both parties, the court concluded that the burden was
  on Adams to demonstrate that the findings by the commissioners were clearly
  erroneous and that it would take evidence from both parties on the 

 

  matter.  The court noted that the parties could call the commissioners in
  order to create a record in support of their findings.  Adams objected to
  the procedure, noting that there was no record to review to determine
  whether the commissioners' findings were supported and that the hearing
  before the trial court was not the place to establish such a record. Adams
  also objected generally to the commissioners giving evidence before the
  court. After the hearing, at which two of the commissioners testified, the
  court determined that Adams had not met his burden, and adopted the
  commissioners' report accordingly.  The court declined, however, to split
  the cost of the survey commissioned by Lindquist between the parties. 

       Lindquist drew up a proposed order, to which Adams objected, again
  arguing that the commissioners as fact-finders could not give evidence in
  support of their own report on appeal, and thus the report was not
  supported by any record evidence.   The court nevertheless decided to
  accept the commissioners' report and entered a final judgment doing so. 
  Both parties appeal from the order to this Court.

       Adams's primary argument on appeal is that the commissioners failed to
  create a record in support of their findings, and the report should not
  have been accepted by the superior court for that reason.  We agree that
  the report of the commissioners should have been rejected by the trial
  court in this case.
   
       As we have previously noted, V.R.C.P. 53 establishes the procedure to
  be followed once the court has appointed commissioners to help effect a
  partition.  Messier v. Messier, 140 Vt. 308, 312, 438 A.2d 397, 399 (1981). 
  Furthermore, the order of reference controls the proceedings before the
  commissioners.  See V.R.C.P. 53(c); Messier, 140 Vt. at 313, 438 A.2d  at
  400.  Once a report is made to the superior court pursuant to V.R.C.P. 53
  and the order of reference, the superior court 

 

  reviews findings made in the report in the capacity of an appellate court. 
  See Hansen v. Town of Charleston, 157 Vt. 329, 334, 597 A.2d 321, 323
  (1991).  In aid of this review, V.R.C.P. 53(e)(1) requires that the report
  be accompanied by the evidence relied upon, including a transcript of the
  proceedings and any exhibits.  Thus, as a threshold matter, the court
  merely must determine whether the report's findings were clearly erroneous. 
  See id. 53(e)(2); Messier, 140 Vt. at 313, 438 A.2d  at 399-400.  If it
  determines that they are  its options are somewhat broader than a
  traditional appellate court.  It may "modify [the report] or may reject it
  in whole or in part or may receive further evidence or may recommit it with
  instructions."  V.R.C.P. 53(e)(2).
   
       In this case, the trial court specifically ordered the commissioners
  not to engage in ex parte contacts without stipulation of the parties and
  to give notice and an opportunity to be present for the taking of any
  evidence.  It also suggested a meeting with all parties present.  Cf.  Town
  of Brookline v. Town of Newfane, 126 Vt. 179, 182, 224 A.2d 908, 910 (1966)
  ("Trial by reference is conducted in the same manner as trial by court. 
  Evidence is presented in the presence of the parties and to the full panel
  unless these requirements are waived.") (citations omitted).  It does not
  appear from the record that the commissioners adhered to these directions. 
  Rather than taking evidence, it appears that they undertook their own
  independent investigation of the facts.  While this in itself is somewhat
  problematic, id. at 183, 224 A.2d  at 910 (commissioner's independent
  inquiry made "the trier of the facts in effect an unsworn witness"), the
  more troubling aspect in this case is the commissioners' utter failure to
  create and submit a record of this investigation to the trial court as
  contemplated by V.R.C.P. 53(e)(1).  The only exhibit or evidence
  accompanying the commissioners' report was the survey provided by
  Lindquist, a copy of which had not been appended to the report provided to
  Adams.  Thus, there was essentially no record for the trial court to review
  prior to its decision to take 

 

  evidence.  Compare Albanese v. Condit, 141 Vt. 651, 653-54, 450 A.2d 1141, 1143 (1982) (where limited record was due to defendant's destruction of
  records and inability or unwillingness to produce evidence, findings were
  not clearly erroneous given "the state of the proof").

       The court's conclusion that it was Adams's burden to demonstrate, via
  examination of the commissioners themselves, that the findings were clearly
  erroneous was an error.  Rather, given the complete lack of a record in
  this case, the court should have conducted a de novo hearing.

       Accordingly, we reverse and remand so that the trial court can conduct
  a de novo hearing on the question of how to partition the properties.  We
  note, however, that in the name of judicial economy and because of the de
  novo nature of the proceedings, both parties may call the commissioners to
  serve as expert witnesses on their behalf.  Cf. V.R.C.P. 53(e)(3) (where
  master has been appointed in matter to be tried by jury, master's findings
  are admissible  as evidence and may be read to the jury).

       In light of our disposition, we think it appropriate for the trial
  court to revisit the issue of the commissioners' fees.  While the parties
  are responsible for such fees, they are only responsible insofar as the
  court deems reasonable.  See 12 V.S.A. § 5181.  Given the unusual nature of
  the proceedings conducted by the commissioners, we think it a matter proper
  for further evidentiary development on remand.
   
       Finally, with respect to Lindquist's cross-appeal, we discern no abuse
  of discretion in the court's denial of her request that the surveyor's fee
  be split between the parties.  The court had previously denied Lindquist's
  motion for a survey ordered by the court, specifically stating that the
  parties should come back to the court if a survey became necessary. 
  Instead of asking the court to 

 

  revisit the question, Lindquist chose to commission a survey herself at her
  own expense and then provide it to the commissioners.  Thus, we will not
  reverse the trial court's decision on this point.

       Reversed and remanded for proceedings consistent with this opinion.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice