Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2012

- 265

DECEM BER TERM, 20 1 2

Dayco, Inc. } APPEALED FROM: } } Superior Court, Windsor Unit

,

v. } Civil Divisio n } } Al Bergeron and Paula Bergeron } DOCKET NO. 228

- 4

- 12 Wrcv d/b/a Bergeron’s Service Center Trial Judge: Theresa S . DiMauro

In the above

- entitled cause, the Clerk will enter:

Tenants appeal from a judgment of the superior court, civil division, awarding landlord back rent of $20,812.76 plus costs and interest. They contend the trial court erred in admitting

seve ral exhibits under the business

- records exception to the hearsay rule. We affirm.

The record evidence may be summarized as follows. In January 2003, tenants entered into an oral agreement wit h landlord to lease a portion of a warehouse in West Hartford to
conduct an automobile

- service business. Tenants agreed to pay rent of $600 per week, and to be responsible for all utilities and snow plowing. The rent later increased to $750 per week.

Al leging that tenants were in substantial arrears, landlord terminated the lease at the end of 2011 and filed a complaint for unpaid rent. Tenants counterclaimed for damages allegedly arising

from landlord ’ s failure to maintain the premises.

A one

- day tri al was held in June 2012. Landlord was represented by counsel; tenants represented themselves , although they are represented by counsel on appeal

. * Landlord submitted ten exhibits in support of his claim, three of which are the subject of this appeal.

E xhibit 3 was described by landlord as a “recap that was done by my accountant in the office to

determine how much monies were owed for specific years, and how much money was paid and

how much money was due

. ” Exhibits 5 and 10 were described by landlord as spreadsheets in which “running balances wer e kept” of rents due and paid. He explained that they were “developed by someone in my office that showed the monies that were due each week and credits that were applied as the year progressed.” Tenants later also refer enced the “spreadsheets

that w e were getting from” landlord.

The record shows that the trial court inquired of tenants if they had any objection to the admission of landlord’s ten exhibits. Tenants responded by asking, as to Exhibit 3, if it sh owed

* Although both tenants testified individually at trial, we refer to them collectively as

tenants throughout for convenience.2

“the amount he says we paid him in 2010?” The court explained that objections to admissibility of a document are “not because you disagree with it” but rather relate to the sufficiency of the testimony to establish its authenticity , and that they cou ld later cross

- examine landlord about the

amount claimed . Tenants re sponded that they were “just .

. . disputin g the dollar figure for

2010.” The court again explained that the question was not whether they had a “disagreement” with the figures but whether the testimony showed that they were “internal business records generated in the business.” Tenants responded that they were concerned about the accuracy of the numbers, explaining: “ [We’re] trying to state that if that’s what he says that we only paid him $21,000, [we] have a thirty

- seven thousand dollar [figure] that we paid him in 2010. ” The court made one more attempt, asking tenants to “articulate what the objection is ” to the exhibits, observing that there appeared to be no “claim tha t these records are not what .

. . [landlord]

testified to .

. . [that] they’re business records.” Tenants responded, “Well, [we’re] claiming .

. . that there’s quite a bit missing

, ” referring to a number of rent credits which they claimed were

not shown in the documents. The court again explained that tenants could “esta blish that in

cross

- examination ” and admitted the exhibits.

Tenants submitted no documentation to support their claim that they were entitled to additional credits against rent. At the conc lusion of the hearing, the court ruled in favor of landlord, awarding back rent of more than $20,000, and ruled against tenants on their

counterclaims.

On appeal, tenants assert that the trial court erred in admitting Exhibits 3, 5, and 10

under the hearsay exception for business records, V.R.E. 803(6). Specifically, they claim that the evidence was insufficient to show that the records were “kept in the course of regularly conducted business,” that they were “made at or near the time” by or from “in formation transmitted by a person with knowledge,” or that landlord was a “qualified witness” to establish these requirements. Id . It is axiomatic, however, that “a hearsay issue may not be raised for the first time on appeal absent preservation by speci fic, timely objection during the proceeding.” In

re Smith , 169 Vt. 162, 173 (1999). The preservation requirement serves the “important goals” of “creating an adequate record for review, and allowing the trial court to correct any errors and rule on objec tions in the first instance.” State v. Erwin , 2011 VT 41, ¶ 14, 189 Vt. 502.

The record here shows that tenants raised no objection remotely related to the claims asserted on appeal concerning t he business

- records exception, n or indeed that they raised any objection whatsoever to the admissibility of the records. Although the court inquired on several occasions whether tenants had any objection to the exhibits’ admissibility as business records, and explained that the issue concerned the documents’ reli ability and authenticity rather than their accuracy

— which tenants could explore on cross

- examination

— they raised no objection. Although t enants’ maintain that the gist of their arguments on appeal was “apparent from the
context” and th at they “repeatedly voice[d] .

. . issues with the reliability and trustworthiness” of

the exhibits , the argument finds no support in the record.

While we recognize tenants’ pro se status entitles them to greater leeway on appeal with respect to the preservation requirement, it does not entirely dispense with it. As we stated in In re Entergy Nuclear Vermont Yankee, LLC

, “ this flexibility, without more, is not sufficient to

convince us ” that tenants adequately raised below the issues they now argue on appeal. 2007 VT 103, ¶ 12, 182 Vt. 340; see also Valteich v. Knott , 139 Vt. 588, 590

- 91 (1981) (observing3

that while Court affords greater flexibili ty to pro se litigants, “[t]his does not mean that [they] are not bound by the ordinary rules of civil procedure”). Nor, finally, are we free to address the

claims as plain error. “[W] e consider plain error in civil cases ‘only in limited circumstances

, i.e., when an appellant raises a claim of deprivation of fundamental rights, or when a liberty interest is at stake in a quasi

- criminal probation hearing.” Pcolor v. Casella Waste Sys., Inc.

, 2012 VT 58, ¶ 20, ___ Vt. ___ (quoting Follo v. Florindo , 200 9 VT 11, ¶ 16, 185 Vt. 390). These circumstances are not present here. Accordingly, we find no basis to disturb the judgment.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley , Associate Justice

_______________________________________ Beth Robinson , Associate Justice