### VERMONT SUPREME COURT Case No. 23

- AP

- 212

109 State Street Montpelier VT 05609

- 0801

802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) i ndicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

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



### ENTRY ORDER

MAY TERM

, 2024

Estate of Donald Crofut v. S ean Hammond* } APPEALED FROM: } } Superior Court, Chittenden Unit

, Civil Division } CASE NO. 22

- CV

- 01790 Trial Judge: Helen M. Toor

In the above

- entitled cause, the Clerk will enter:

Defendant Sean Hammond ap peals from a final judgment order in favor of plain t iff , the

E state of Donald Crofut

. We affirm.

Crofut died in April 2021. In May 2022, t he E state filed a complaint against Hammond seeking , as relevant here, (1) damages “ for a series of thefts perpetrated by [ Hammond] upon a vulnerabl e adult

, ” and ( 2) a writ of possession for the home where Hammond was living

.

During the pendency of this case , the trial court issued a decision in a related case concerning C rofut ’ s will. See In re Crofut

, 2024 VT 8

. In that case, the court invalidat ed a provi sion in Crofut ’ s w ill based on undue influence

. Th e provision had granted Hammond an option to purchase Crofu t ’ s residence for $40,000 , well below the hom e ’ s market value

. We

affirmed the trial court ’ s decision on appeal

. Se e id

. ¶ 1.

I. Pro ceedings Below

A pplying the doctrine of collateral estoppel , the court relied on findings from the related

case in reaching its decision here

. C ro fut and Hammond met when Hammond was a te enager. They had a “ lifel ong relationship in which [C rofut] served as a ment or and friend to [Hammond]. ” Id

. ¶ 2. Hammond moved into Crofut ’ s home in 2018. C rofut was 87 years old at the time; Ham mond was 45. Crofut was diagnosed with cancer a nd becam e less able to care for

himself o ver time. Crof

ut died in 20 21 at t he age of 90. After his death, a neighbor discovered

“ b uckets filled with cas h ” in H ammond ’ s be droom as well as “ a considerable amount of recently purchased con sumer goods, ” including “ sn eakers, vac uums, lights, printers, and piles of clo thes

with st ore t a g s still attached. ” Id

. ¶ 5. Rec e i pts i ndicated that Hammond used C rofut ’ s debit

card to make these purch ases and did so after he lear ned of Crofut ’ s de a th . Hammond also used

the debit card to wit h dr a w $400 in ca sh from Crofut ’ s checki ng account each d ay during the final

three mon ths of Crofut ’ s life. Id

. C r o f ut was unaware of the se c ash withdrawals and purchases.2

Id

. The trial court found that Hammond had been “ st ealing f rom [ Crofut] for months. ” Id

. ¶ 9 (quotation omitted)

.

B ased on these and o ther f ind ings, the court determined that Hammond stole at least $ 37,500 from Crofut prior t o hi s death and that

, in doin g so, he financially exp lo ited a vulnerable

adu l t under 33 V.S.A. § 6952(a) . The c ourt further concluded that H am mond ’ s continu ed

pos s e s sion of Cro f

ut ’ s residence was without right and the Estate was entitled to possessio n

.

In reaching its decision, the court rejected Hammond ’ s assertion that material f acts
remain ed in dispute . Hammond argued t hat there was no e vidence that his purcha s e of person al

items with Crof

ut ’ s debit car d w a s unauthorized. The court found th is fact established in its

earlier merits decision in the related case

. The court agreed with Hammond that the spending analysis prof

fered by the Estate did not prove the to tal amount that Hammond stole from Crofut

. The o nly amou nts that the co urt pr eviously made findings o n were the $ 400

- pe r

- day c ash

wi th drawals for three months and the $1200 spen t at a c lothing store on the day that Crofut died, which totaled $37,200. Abs ent more evidenc e, the court could not concl ude t hat all o f the charges on a spread s heet submi tted by the Estate were un a u th ori zed.

The court found the Estat e entitled to restitution of funds stolen from C rofut during his

lifetime based on unjust enrichm ent. Hammond did not contest th e Estate ’ s stand ing t o bring such claim or its legal ri ght to restitutio n on the fact s here.

The Estate also argued that it was entitled to statutory restitution under the law protecting

v ulnerable adult s, 33 V.S.A. § 6952

. Under that law, a v ulnerable adult i nclu des one who is

suff ering from “ infirmities of aging ” or “ p h y s ical

. . . disability ” that impairs his “ ability to provide for his

. . . own care without assist ance, ” including health care. Id

. § 6902(14 ) (D). The

court explained that Crofut was 90 wh en he died and had been diagnosed with cancer in 2018.

H e wa s h o spitalized for months in 2020 and had nurse and hospice care as ti m e passed. The

court concluded that Crofut met t h e statutory definition of a v ulnerabl e adult from at least h is

h ospitaliz at ion in Januar y 2020.

Section 6952(a) provide s remedies when s o m e one “ with reck less disr egard or with knowledge ” enga ges in “ financial exploitation ” of a v ulnerable adult. As relevant here,

“ f inancial exploitation ” m e ans “ using

. . . funds or proper ty of a vulnerable adult, without or in excess of legal autho rity, f o r the wrong ful profit or advantage of another ” or “ acquiring possession or control of or an interest in funds or property of a vulnerable adult through th e use of undue influence, harassm ent, duress, or fraud

. ” Id

. § 6951( 3)(A), (B). The court fo und thi s requiremen t clearly s ati sfied based on its determination that Hammon d intentionally used

Crofut ’ s bank accounts without permission. It thus found that t h e Estate w as entitled to money
d amages
, exemplary damages of u p to three times the sto len fun ds, att o rney ’ s fees , in j u n ctive

r elief, and costs. See i d

. § 6952(b). T he court awarded the Estate the maximum amount of exemplary damages because o f Hamm ond ’ s b etrayal of Crofut ’ s trust in him a fter all Crofut did

for him

.

The Estate also so ugh t p ossession of Cro f ut ’ s residenc e
, where Hamm ond re mained after

Crofut ’ s de ath. Hammond argued that his residen c y in the h ouse was “ in the nature of a tenancy

, as he p a id rent to Crofut and the Estate. ” The court found th a t Hammond had previously paid $ 300 per mont h in rent to Crof ut. Hammond conc eded

, however, that his only claim to possession after Crofut ’ s dea th in April 2021 was pursuant to the provision in Crofut ’ s will for3

payme nt of costs of maintenanc e and upkeep, not pursuant to the prior ren t a l agreement w ith

Crofut. The court explain ed that this claim to possession also failed because the provision of the will regarding his option to buy the house (and th us the concomitant provision for his payment of

costs until the purchase ) was deemed inva lid . T h e co u rt h eld that the Estate was en tit led to regain possession.

The court subsequently is sued a final judgment order award ing judgment to the Estate

and a w ar di n g damages, attorney ’ s fees, and costs, al o ng with a writ of possession for the

residence

. T his appeal follo wed.

II. A rguments on Appeal

Hammond ar gues on appeal that (1) mat erial facts remain in d ispute re garding whether he

sto le from Crofut and wheth e r Crofut was a v ulnera ble adult

, (2) t he Estate lack ed standing to

pursue a c ause of action under 33 V.S.A

. § 6952(a)

, an d (3) Hammon d ’ s s tatu s as a tenant was disputed and the cour t erred in issu ing a writ of possession

. We address these ar guments in tu r n.

W e agree with the trial court that the material facts are undi s pu ted. T he court

appro p riately applied t h e doctrine of collatera l estoppel and relied on the findings i n the related

case. See In re P.J. , 2009 VT 5, ¶ 8, 185 Vt. 606 (mem.) (identifyin g el ements of collateral

est oppel). “ Collateral estopp el applies to issues of both fact and law. ” M e llin v. F lood Brook

Union Sch. D ist. , 173 Vt. 202, 209 (2001). The facts establish that H am mond ’ s use of Crofut ’ s debit card to purchase personal items a n d wi thdraw cash was unauthorized and that the

una uthori zed use tot al ed at lea st $37, 2 00. H am mond can n ot challenge the eviden tiary ba sis for these findings at this stage. That issue was previously litigated and the findin gs are now final.

See In re P.J.

, 2009 VT 5, ¶ 8 (explaining that “ purpose of collateral estoppel is to conser ve the

resources of court s and litigants by protecting t hem against repetitive litigation, to promote the finality of judgments, to encourage reliance on judicial decisions, and t o decrease the chances of

inco nsistent adjudication ” )

. *

The un disputed f

ac t s als o establish that Crof ut was elderly , ho spitalized for periods of

time , and inc r easi ngly unable to car e for himself

, and in tur n est ablish , as a matt er of law, that

Crofut wa s a “ v ulnerable adult ” as defined in 33 V.S.A. § 69 02(14)(D)

.

* Ham mon d also as se r t s th at the court erred in in voking collatera l es toppel b ecause, a t the time, the compani on case wa s on appeal. That case has bee n finally r e solved

, an d th is argument

i s therefore moot.

Hammon d does not show that he preserv ed his assertion that appl yi n g t he doctrin e o f

collatera l est oppel was unf air , and , further

, his one

- sentence argument i s ina dequately briefed

. See In re S.B.L. , 150 Vt. 294 , 297 (1988) ( explaining that appellant bears burden of demonstrating how trial court erred warr antin g r eversal, a nd this Court w i ll not comb record searching for error); see also V.R.A.P. 28(a)(4) ( sta ting appellant ’ s br ief should expla in what issues are, how the y were preserved, and what appellant ’ s contentions are on appeal, with

citations to authoriti es, stat ut e s, and parts of record re l ied upon). E ven if this argument was preserved , we would reject it. Hammond offers no persuasive argument why he should be

a llowed to re litigate whether his use of Crofut ’ s debit card was unauthorize d

.4

Turning to H a mmond ’ s second argument, H a mmond did not argue in his opposition to

summary judg ment that the Es tate l acked auth ority to p ursue relief on Crofut ’ s beh alf under 33

V.S.A. § 6952(a)

. Instead, he raised the argument for the first time in a moti o n f or judgme nt on
th e pleadings, filed two months after the E state ’ s motion for summary j udgment was filed and a month after his opposition to summary judgment was filed. The Es tate opposed t h e motion as both untime ly and without merit. T he court rule d t h at the moti on for judgm ent on the pleadings was not yet ripe given the pending motion fo r s ummary judgment. Following its summary

judgment ruling, th e court den ied the motion for judgment on the p lea dings. It r eiterated that the

m o tion was not r ipe until th e court decided the summary

- judgment motion. It found the motion untimely and explai ned that the standing argument should have been raised in opposition to the Estate’s motion for summary judgment. The court considered th e issue raised in the mo tion

moot as it had granted summary judgment and addressed the claim for restitution under the

“vulnerable adult” statute. In any case, the court continued

, it was persuaded that the Estat e’s

argu m ents in opposition to th e motion w e re correct.

We reach the sam e conclusion here. T his argument w as not properly raised in opposition

to summary judg ment

. See Denton v. Chittenden Bank

, 163 Vt. 62, 69 (1994) ( “ Failure to raise a legal or factual re aso n why summary judgment should not b e gran ted before t he tr ial court precludes ra ising such a reason on appeal. ” ). It also f ails on the merits. In asser ting that the

Estate lacks s tanding, Hammond f ails to address Vermont’s Surviv al Statute, 14 V.S.A. § 1 4 51

, which provides that “[a]ctions

. . . on tort on accoun t of the wrongful conversion of personal

estate or for damages done to

. . . personal estate s hall survive, in addition to the actions that survive by common law, and may be commenced and prosecute d by the executor or

administrator. ” We agree with t he Estate tha t an action seeking restitution for thefts that

Hammond perpetrated against Crofut’s “p ersonal estate ” survives Crofut’s death. See Estate of Kuhling by Kuhling v. Glaze , 2018 VT 75, ¶ 15, 2 08 Vt. 273 (“We read the lan guage [ of 14 V.S.A. § 14 5 1] allowing to rt claims for damage to the ‘personal estate’ to include allegations of

breach of fid uciary duty that would have resulted in a decrease in Estate assets.”)

.

As to Hammond ’s final argumen t

, the record indicates that the Est at e sought an ord er of

e jectment and a writ of possession in its first amended complaint. It alleged that Hammond ha d been in sole possession of Crofut ’s r esidence since Crofut ’s death in April 2021. H ammond ’ s

occupanc y of the r esidence was base d on hi s belief that he ha d a valid, test amentary right to purchase the r esidence from the Estate under the terms of Cr ofut ’s will. The probate division invalided this portion of the will in M ay 2022 after finding that H am mo nd s t ole from Cr ofut.

Followin g this decision, the Estat e again demande d that Hammon d vacate the residence , which

Ham mond refused to do

. When the superior court affirmed the pro bate ruling, the Estate

demanded that Hammon d leave for a third time

, without suc c ess. The Estate alleged t ha t
Hammond ’ s contin ued oc cupancy of the residence was unlawful and without right and that it was entitled to possession

.

T h e trial court foun d

, a nd Hammond conceded

, that Hammond ’ s only claim to possession

after Crofut ’ s dea th was pursuant to t he provision in Crofu t ’ s will for p ayme nt of costs of maintenance and upkeep, not pursuant to the p rior ren t a l agreement with Crofut. Th e provision

in the will on which Hammon d relied had been invalid ated. The court thus found as a matt e r of

l aw that the E state wa s entitled to regain poss ession of the h ome.5

While Hammond argues in his brief that he should be c onsidered a tenant and be given the process affor ded tenants , he asserted below in an April 2022 filing that he was not a te nant
and t h at he was not obligat ed to pay rent to remain in the home. T he court di d not err in finding

that Hammond conce ded that his only claim to possessi on was by virtue of the provision in

Crofut ’ s will , which was thereafter inv alidated. Having no righ t t o con tinued occupa ncy of the

pre mises, the court did not err in gra nting possession to the Estate pursuant to its common law ejectment claim. See Kello gg v. Shushereba , 2013 VT 76, ¶ 23, 194 Vt. 446, ( explaining that in

absence of landlord

- tenant agree me n t, eviction action wa s “ more properly viewed as a common law action for ejectment governed by 12 V.S.A. § 4761, with such ‘ damages ’ as would be due

unde r 12 V.S.A. § 4765 ” ); see also 1 2 V.S.A. § 4761 ( “ A person having claim to the seisin or possession o f l ands, tenements, or heredit aments shall have an action of ejectment , according to

the nature of the case

. . . . ” ).

Affirmed

.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice