Trillium Holdings LLC v. Buchanan et. al., No. 360- 6-13 Wrcv (Teachout, J., Sept. 12, 2013).

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont t rial court opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windsor Unit Docket No. 360-6-13 Wrcv

TRILLIUM HOLDINGS LLC, Plaintiff,

v.

AMANDA BUCHANAN and JUSTIN HAGGARD,

Defendants.

DECISION

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is before the court on Defendants’ Moti on for Summary Judgment, filed July 18, 2013.

FACTS

Trillium Holdings LLC (“Plaintiff”) owns real pro perty located at 120 Main Street, Springfield, Vermont (the “Property”). The Property includes several apartments which Plaintiff rents out, including Apartment 5, w hich Plaintiff rented to Amanda Buchanan and Justin Haggard (“Defendants”). Defend ants owed Plaintiff $850.00 per month as rent for the apartment.

On May 8, 2013, after Defendants had failed to make their required rental payments, Plaintiff delivered a notice of terminati on to Defendants by placing the notice on Defendants’ table. At the time, Defendants were not in their apartment. They were staying in Pittsford, Vermont, where they remained until May 17, 2013. Defendants did

not learn of the notice of termination until that d ate. The notice of termination listed May 24, 2013 as the date the termination would become e ffective.

On June 11, 2013, Plaintiff filed the complaint in this action seeking payment for unpaid rent, other incidental costs, and possession . Plaintiff moved for payment of rent into court, and a hearing was scheduled for July 3, 2013. Defendants appeared that day and did not challenge the validity of the terminati on of tenancy through a motion to dismiss. Instead, they voluntarily accepted servic e of a Rent Escrow Order requiring them to pay $1,388.00 by July 18, 2013 to avoid a w rit of possession being issued in

favor of Plaintiff.2 Defendants filed their answer on July 18, 2013. Th eir answer included counterclaims alleging that the eviction was retali atory, Plaintiff had kept the apartment in an unsafe condition, and Plaintiff owed money to Defendants. 1

Also on July 18, 2013, Defendants moved for summary judgment, claiming that Plaintiff failed to provide actual notice of the te rmination of Defendants’ tenancy on May 8, 2013. 2 According to Defendants, this failure meant that they did not learn of their tenancy’s termination until May 17, 2013. Because the notice of termination identified May 24, 2013 as the tenancy’s termination date, Def endants argued that they were not provided with the 14 days notice required by 9 V.S. A. § 4467 and that they were therefore entitled to summary judgment. Plaintiff failed to oppose this motion, but on July 20, 2013 filed a motion to amend the complaint asserting that Defendants “were

delivered a termination notice via first class mail ” on July 19, 2013, which terminated Defendants’ tenancy on August 5, 2013. Mot. to Ame nd Compl. for Ejectment, p. 1.

Defendants did not pay rent as required by the Rent Escrow Order. On July 23, 2013, Plaintiff filed a motion for writ of possessi on on the grounds that Defendants’ failure to comply with the Rent Escrow Order entitl ed Plaintiff to possession of the apartment. The next day, on July 24, 2013, the cou rt granted Plaintiff’s motion and issued a writ of possession in its favor.

ANALYSIS

To prevail on a motion for summary judgment, a mov ant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). In ruling on a motion for summary judgment, the court will take “all allegations made by the nonmov ing party as true.” Richart v.

Jackson , 171 Vt. 94, 97 (2000). Here, Plaintiff did not o ppose Defendants’ motion. Although this reality could make summary judgment m ore likely, “the failure to respond does not require an automatic summary judgment.” Miller v. Merchants Bank , 138 Vt. 235, 238 (1980).

In their motion, Defendants argue that they are en titled to summary judgment because Plaintiff failed to provide them with actua l notice of the termination of their tenancy at least 14 days before the termination dat e, as required by 9 V.S.A. § 4467. (“The landlord may terminate a tenancy for nonpayme nt of rent by providing actual

notice to the tenant of the date on which the tenan cy will terminate which shall be at least 14 days after the date of the actual notice.”) 9 V .S.A. § 4451 defines “actual notice” as “receipt of written notice hand-delivered or mailed to the last known address.” 9 V.S.A. § 4451. In this case, Plaintiff delivered the noti ce of termination by entering Defendants’

1 These counterclaims were eventually dismissed becau se Defendants failed to pay the requisite fee when filing their answer.

2 Although Defendants’ memorandum of law identified the motion to dismiss standard as applicable to the ir motion, the motion is better characterized as a mot ion for summary judgment, which is how it is titled

. Accordingly, the court will treat it as a motion fo r summary judgment.3

apartment and leaving it on their table. Such deli very fails to satisfy the actual notice requirement of 9 V.S.A. § 4467. See In re Soon Kwon , 2011 VT 26, ¶ 18, 189 Vt. 598.

Although Defendants had a valid argument that the notice of termination was not proper, their motion for summary judgment still mus t be denied because they did not raise it in a timely-filed Motion to Dismiss. Inst ead of challenging the notice of termination in a Motion to Dismiss prior to filing an Answer, see Andrus v. Dunbar, 2005 VT 48, ¶ 19, 178 Vt. 554, Defendants filed an Answe r and Motion for Summary Judgment, and they voluntarily accepted service of the Rent Escrow Order. See Neverett

v. Towne , 121 Vt. 447, 457 (1960) (explaining that “the ben efit of a statute may be waived”). By accepting service of the Rent Escrow Order on July 3, 2013, Defendants acknowledged that they were required to pay rent to the court by July 18, 2013 and they accepted the consequences that flow from failure to make payment under a Rent Escrow Order. The order clearly states that if Defendants failed to comply with its terms, the court could issue a writ of possession without furt her hearing, as provided for in 12 V.S.A. § 4853a (h).

On July 24, 2013, after Defendants failed to make p ayment under the Rent Escrow Order, the court issued a writ of possession in favor of Plaintiff. The issuance of this writ ended any dispute over possession of the apartment. Because Plaintiff is now in possession of the apartment, Defendants’ summary ju dgment motion to obtain possession is moot. Defendants failed to preserve their claim . “Once the landlord obtains a writ of possession, it would be irrational to allow the ten ant to regain entry to the property.” Tucker v. Bushway , 166 Vt. 592, 592 (1996). Accordingly, Defendants ’ motion for summary judgment is denied.

ORDER

Defendants’ Motion for Summary Judgment is hereby DENIED. The court will schedule a final hearing on Plaintiff’s claim for a monetary judgment.

Dated at Woodstock, Vermont, this ___ day of Septem ber, 2013.

Honorable Mary Miles Teachout Presiding Judge Windsor Superior Court