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

DECEMBER TERM, 2012

Dayco, Inc. } APPEALED FROM:

}

} Superior Court, Windsor Unit,

 v. } Civil Division

}

}

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 

several 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 with 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. 

Alleging 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 trial 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. 

Exhibit 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 were 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 referenced the “spreadsheets 

that we 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 showed 

 

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

tenants throughout for convenience.
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“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 could later cross-examine landlord about the 

amount claimed. Tenants responded that they were “just . . . disputing 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 that 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 “establish 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 conclusion 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 “information 

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 specific, 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 objections 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 the business-records exception, nor 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’ reliability and authenticity rather than 

their accuracy—which tenants could explore on cross-examination—they raised no objection. 

Although tenants’ maintain that the gist of their arguments on appeal was “apparent from the 

context” and that 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) (observing 
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that while Court affords greater flexibility 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, 2009 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