Thursday, September 8, 2011

Geologic Litigation

Bostock v. City of Burlington, 2011 VT 89 (mem.).

The point that Charles Dickens drove home in Bleak House to the point of absurdity was this: litigation can last forever and consume everyone involved.  On this first point, let me submit today’s case as Exhibit A of a decades-in-the-making litigation.

In the early 1970s, the City of Burlington dumped, with permission of the owners, tree removal debris on property north of Plaintiff’s current lot.  In the spring of 1976, this debris caught fire and burned for several months.  The City’s fire department used water and explosives to fight the fire.  Plaintiffs moved into property south of this smoldering stump dump in the fall of 1976 and purchased the property outright in 1977 when the fire was, presumably put out. 

Over the years the City has not done much to the northern property, but Plaintiffs claim that they have suffered because of slumping and flooding due, they believe, to the events of 1976 and earlier.  In 2003, after an apparent, but metaphorical, slow burn on these issues, Plaintiffs filed suit against the City based on three theories of liability and five claims of interest in the stump lot. 

After some time for discovery, the City filed two motions for summary judgment.  The first attacked Plaintiffs’ claims of interest in the stump property.  The second attacked Plaintiffs’ theories of liability, trespass, nuisance, and withdrawal of lateral support.  In response, Plaintiffs filed a fifty six memorandum of law in opposition to the first motion and then a fifty two-page memorandum, opposing the second.  In each, Plaintiffs attacked the City’s arguments and reasserting and explained their own claims.  In early 2010, the trial court ruled on the motions granting the City summary judgment on the three liability theories and one claim of interest. 

Plaintiffs quickly filed a motion for reconsideration on the lateral support claim and were denied.  Plaintiffs sought an interlocutory appeal on the issue and were also denied.  Four days before trial in June 2010, Plaintiffs sought to amend their complaint and reinstate their claim of withdrawn lateral support with new evidence.  The trial court denied this request as a claim that was too new and too late to be allowed.  The parties settled the remaining claims, the trial was cancelled with the present appeal following. 

On appeal, the Plaintiffs challenge the trial court’s refusal to allow them to amend their complaint, to introduce their new witness and his affidavit, and to modify their theory of liability on the issue of lateral support.  This appeal follows an abuse of discretion standard, and the burden is high for Plaintiffs to find that the trial court abused its discretionary power in denying 11th hour changes.  At least, that is the way the SCOV sees it.  Plaintiffs gave no reason why their expert and his opinion were not available earlier in the litigation and gave no reason why they took seven years to “clarify” their complaint.  The SCOV is dubious, given the Plaintiffs’ prior lengthy filings and adequate opportunity to clarify their claims.  If their motion was really to modify existing claims, then why they did they wait so long and not enunciate their new theory sooner.  The answer, at least according to the SCOV is because it was a new theory, and the trial court had the power to refuse its admission.  No error here, and the trial court’s decision is affirmed. 

After nearly forty years, Plaintiffs will have to let this one just slide.

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