Lindquist v. Adams

811 A.2d 173, 174 Vt. 179, 2002 Vt. LEXIS 226
CourtSupreme Court of Vermont
DecidedAugust 23, 2002
DocketNo. 01-178
StatusPublished
Cited by5 cases

This text of 811 A.2d 173 (Lindquist v. Adams) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindquist v. Adams, 811 A.2d 173, 174 Vt. 179, 2002 Vt. LEXIS 226 (Vt. 2002).

Opinion

Morse, J.

Caryl T. Adams appeals from a superior court order adopting a commissioners’ report partitioning several parcels of land in the towns of Fair Haven and West Haven. Adams argues on appeal that the commissioners failed to create a record in support of their report, in part due to their actions of undertaking independent investigations of the facts and failing to hold a contested hearing with both parties present, and that the commissioners’ findings are not supported by the record such as it is. Adams also argues that the trial court’s order with regard to the commissioners’ fees should be reversed as unreasonable. Evelyn Lindquist cross-appeals, arguing [180]*180that the trial court erroneously denied her request that the cost of a survey relied upon by the commissioners be divided between the parties. We reverse and remand.

Caryl Adams and Evelyn Lindquist, brother and sister, each own a 50% interest in three parcels of land located in the towns of Fair Haven and West Haven. In May 1997, Lindquist brought an action for partition in superior court. The court appointed three commissioners pursuant to 12 V.S.A § 5169, two of whom were selected by Lindquist and Adams, with the third selected by the two commissioners selected by the parties.

On February 16,1999, the court held a conference with both parties present, along with two of the commissioners. The day of the conference, Lindquist filed a motion requesting that the court order a survey of the properties, splitting the cost between the parties. At the conclusion of the conference, the court denied Lindquist’s motion, holding that, if the commissioners subsequently decided a survey was necessary, they should notify the court and it would revisit the question. The court also directed the commissioners not to have any ex parte contacts with the parties or third parties without notifying Lindquist and Adams and giving them an opportunity to be present for the taking of evidence. The court suggested the commissioners hold a meeting to determine what evidence would be submitted by the parties, whether they could agree to specific third-party contacts, whether a survey would be necessary, and whether any title work would be necessary to accomplish the partition. It does not appear from the record that such a meeting was held; rather, the commissioners sent a letter to the parties soliciting documentary evidence and noting that the commissioners would be meeting later that month regarding the case.

The next docket entry comes almost a year later, in January 2000, noting that a status conference had been scheduled in the case. Apparently, in the intervening time, the commissioners had undertaken an independent investigation of the properties, including walking the properties on their own, contacting various municipal boards regarding the development potential of the parcels, and speaking to an individual who had logged portions of the properties in 1995. The commissioners sent a status report to the court indicating their ongoing investigations and noting that a survey of at least part of one of the properties was necessary to complete the division of the parcels. The status conference was then canceled. In September 2000, the commissioners wrote a letter to the parties’ attorneys seeking their [181]*181legal opinions regarding a potential right-of-way to one of the parcels that they had uncovered when undertaking a title search of the property. It is not clear how or whether the attorneys responded. Also some time prior to the commissioners’ final report, it appears that Lindquist independently commissioned a survey of two of the parcels, which she then provided to the commissioners.

In January 2001, the commissioners submitted their final report to the court dividing the properties. Adams objected to the report and requested that the matter be recommitted to the commissioners for further proceedings. Specifically, he contested several specific findings, noting that the commissioners had either not taken independent evidence on the matters or had not notified him of the taking of such evidence. He also argued that the commissioners had failed to make adequate and detailed findings to support their decision so as to allow for review, and, finally, that the commissioners had “held no hearings and produced no record of their proceedings,” thus precluding review.

The court held a hearing on the matter on February 15, 2001. After hearing argument from both parties, the court concluded that the burden was on Adams to demonstrate that the findings by the commissioners were clearly erroneous and that it would take evidence from both parties on the matter. The court noted that the parties could call the commissioners in order to create a record in support of their findings. Adams objected to the procedure, noting that there was no record to review to determine whether the commissioners’ findings were supported and that the hearing before the trial court was not the place to establish such a record. Adams also objected generally to the commissioners giving evidence before the court. After the hearing, at which two of the commissioners testified, the court determined that Adams had not met his burden, and adopted the commissioners’ report accordingly. The court declined, however, to split the cost of the survey commissioned by Lindquist between the parties.

Lindquist drew up a proposed order, to which Adams objected, again arguing that the commissioners as fact-finders could not give evidence in support of their own report on appeal, and thus the report was not supported by any record evidence. The court nevertheless decided to accept the commissioners’ report and entered a final judgment doing so. Both parties appeal from the order to this Court.

Adams’ primary argument on appeal is that the commissioners failed to create a record in support of their findings, and the report should not have been accepted by the superior court for that reason. [182]*182We agree that the report of the commissioners should have been rejected by the trial court in this case.

As we have previously noted, V.R.C.P. 53 establishes the procedure to be followed once the court has appointed commissioners to help effect a partition. Messier v. Messier, 140 Vt. 308, 312, 438 A.2d 397, 399 (1981). Furthermore, the order of reference controls the proceedings before the commissioners. See V.R.C.P. 53(c); Messier, 140 Vt. at 313, 438 A.2d at 400. Once a report is made to the superior court pursuant to V.R.C.P. 53 and the order of reference, the superior court reviews findings made in the report in the capacity of an appellate court. See Hansen v. Town of Charleston, 157 Vt. 329, 334, 597 A.2d 321, 323 (1991). In aid of this review, V.R.C.P. 53(e)(1) requires that the report be accompanied by the evidence relied upon, including a transcript of the proceedings and any exhibits. Thus, as a threshold matter, the court merely must determine whether the report’s findings were clearly erroneous. See id. 53(e)(2); Messier, 140 Vt. at 313, 438 A.2d at 399-400. If it determines that they are its options are somewhat broader than a traditional appellate court. It may “modify [the report] or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” V.R.C.P. 53(e)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
811 A.2d 173, 174 Vt. 179, 2002 Vt. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindquist-v-adams-vt-2002.