Allard v. Halasz , 687

- 11

- 16 Wncv (Teachout, J., Apr. 14, 2017)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 687

- 11

- 16 Wncv

WILLIAM ALLARD on appeal from

Plaintiff

– Appell ee

Small Claims

v. Docket No. 186

- 7

- 16 Wnsc

ANNETTE HALASZ

Defendant

– Appell ant

DECISION ON APPEAL

Defendant

– Appellant Annette Halasz has appealed from a small claims judgment in favor

of her contractor, Plaintiff

– Appellee William Allard . The small claims court awarded him a

judgment for the amount of unpaid “general contractor” charges related to a renovation project

that Ms. Halasz had refused to pay. The court found in her favor with regard to charges related

to a door that she also refused to pay but Mr. Allard did not cross

- appeal so that ruling i s not

contested on appeal. 1

On appeal, Ms. Halasz asserts that there was no evidence of any agreement for the

general contractor charges (10% of subcontractor expenses) before the small claims court . She

claims that the court merely found that such a ch arge would h ave been reasonable and then

assessed it . Ms. Halasz further asserts that such a charge is not standard practice, there was no

contract, and the charge was unreasonable.

An appeal from a small claims judgment is heard and decided “based on t he record made

in the small claims court.” 12 V.S.A. § 5538. The “appeal is limited to questions of la w.”

V.R.S.C.P. 10(d). If the small claims c ourt has applied the correct law, t his c ourt will affirm its

“conclusions if they are reasonably supported by the findings.” Maciejko v. Lunenburg Fire

Dist. No. 2 , 171 Vt. 542, 543 (2000) (mem.). In turn, the findings of fact must be supported by

the evidence, Brandon v. Richmond , 144 Vt. 496, 498 (1984), and such findings “must be

construed, where possible, to support the judgment,” Kopelman v. Schwag

, 145 Vt. 212, 214

(1984). The court’s review of the small claims c ourt’s legal conclusions, however, is “non

deferential and plenary.” Maciejko , 171 Vt. at 543 (quoting N.A.S. Holdings, Inc. v. Pafundi

, 169 V t. 437, 439 (1999)).

The court has listened to the recording of the small claims hearing and reviewed the

entire record of this case. The small claims court ruled orally at the end of the hearing. The

judge clearly found that the parties in fact agreed to the general contractor charge at the inception

of their relationship, though there was not a written agreement so stating. She explained that an

oral agreement is enforceable , which is correct . The finding that there was an agreement was

1 Although Mr. Allard mentioned this issue in his reply memorandum, he did not properly preserve the issue by

filing his own cross appeal.2

amply suppor ted by extensive testimony to that effect from Mr . Allard. Testimony is evidence

on which findings of fact may be based

.

While the court also found that the charge was a reasonable practice, presumably based

on Mr. Allard’s testimony that it is usual and customary, it did not find Ms. Halasz liable merely

because the fee was reasonable

. It expressly found a contract. To th e extent that the small

claims court found Mr. Allard credible on this issue rather than Ms. Halasz, credibility

assessments are reserved for th e finder of fact, the small claims judge in this instance.

There is no legal error.

ORDER

The judgment of the small claims court is affirmed.

Dated at Montpelier , Ve rmont this ____ day of April 201 7

.

_____________________________ Mary Miles Teachout

Superior Judge