Monday, December 14, 2015

Annoying Does Not Equal Tortious

Weinstein v. Leonard, 2015 VT 136

By Elizabeth Kruska

This opinion, unfortunately, is a result of the intersection of the two things that apparently drive a huge percentage of Vermont jurisprudence: poorly-drafted land use documents, and neighbors who don’t like each other. I have never been in the inner offices of the Vermont Supreme Court, but I like to assume there’s a whiteboard hanging somewhere, showing a running tally of SCOV greatest hits. I imagine there’s a column marked “HOAs” and it’s got several marks below it, and is right next to the column marked “cases on probation conditions,” which has so many marks they had to start a new pen and/or continue onto the floor below.

Anyway, whatever. The Weinsteins (plaintiffs) own Lot 9 and Leonard and Sayour (defendants) own lot 10. The Weinstein Group is a third party defendant, which I’ll get to in a second, or in a few paragraphs.

The defendants decided they wanted to build a barn. The plaintiffs were apparently not hip to this idea. Defendants got a zoning permit to build. Plaintiff, because she’s a neighbor and she can do this, appealed to the Manchester development review board (DRB), and the permit was upheld. After the permit was upheld, there was some sort of, ah, interaction between Plaintiff and Defendant that involved Plaintiff shouting out a window, and also Plaintiff confronting Defendant(s) on their property and bringing a “very large dog.” Two things: I live in Vermont and am familiar with two Vermont phenomena—barns and big dogs. Part of me wishes this opinion also involved a Subaru to complete the Vermont trifecta. As a horseplayer I’d call it a Vermontfecta, which is a fun word but sort of offensive-looking in print.

After the dog incident, Plaintiff appealed the permit decision to the civil court. There also appears to be a trip to the Environmental Court somewhere along the way, too. Plaintiff, who is “trained as a lawyer” initially represented herself, but then her husband’s firm, The Weinstein Group (WG), entered its appearance on her behalf. WG ends up as a third-party defendant in this case, because Defendants ended up making claims against WG.

To make a long story short, Defendants essentially argue that Plaintiff didn’t have any right to appeal the initial zoning permit to the Manchester DRB. The neighborhood where the parties live has an agreement created by the developer that says homeowners won’t obstruct one another from development within the community so long as the development is consistent with the land use approvals. In other words, it’s probably okay to build a tasteful shed to keep your potting soil and as a place to hide your Christmas presents, but it’s probably not ok to build an airplane hangar; the neighbors aren’t supposed to stand in each other’s way if one is going to do some building. Defendants read this to mean that a neighbor isn’t supposed to appeal to the DRB if someone in the neighborhood gets a permit.

SCOV is not having this. First of all, the contract is vaguely titled, and the part about non-interference is sort of buried inside. It’s not really clear enough to give a purchaser adequate notice. In fact, SCOV wants to see really clear notice to purchasers, and sets forth some clear law on what it wants. Second, the way the defendants read this, it would actually prohibit landowners from exercising due process and effectively waives civil litigation. SCOV says there’s a pretty high standard that has to be met to get someone to waive their right to access the courts, and this isn’t it. They even bust out a citation to the Vermont Constitution about court access.

Defendants also had a third-party claim against WG for the firm’s role in facilitating the breach of the development agreement. SCOV says no to this, too. There wasn’t a breach of the development agreement, so there wasn’t facilitation in any such breach. And it occurs to me that an attorney filing suit on behalf of a client shouldn’t have to be on the hook for a claim like this. If WG hadn’t been connected to Ms. Weinstein, and if she’d been represented by a different lawyer, probably this claim wouldn’t have been made. It seems like potentially bad policy to go down the road to allow facilitation clams against lawyers because they file suit. My comment on this is longer than the whole paragraph SCOV spends on this piece.

Defendants also appealed the granting of summary judgment with respect to their claim of abuse of process against WG. SCOV says no to this, also. In order to have a successful abuse of process claim, the claimant has to show there was an improper or illegal use of the system, there has to be an ulterior motive or purpose and there have to be damages. Just being malicious isn’t enough. Defendants argued that Plaintiff is trained as a lawyer, and essentially should know better than to bring suit.

SCOV says no. Everyone has equal access to the court system, regardless of their education. Also, Plaintiff didn’t really abuse the court system. She accessed the DRB the way any other neighbor who has an interest in appealing a zoning decision would, and she appealed the decision.

Defendants allege WG did some improper things. The firm contacted the Defendants personally, even though they had attorneys. Lawyers are not supposed to do this; even every law student knows you don’t contact a represented party about the pending matter. Sure, if Mr. Weinstein had seen the neighbors at the mailbox and said, “looks like it’ll rain today,” that’s ok. But that’s not what’s alleged, so that’s not ok. The defendants also allege WG brought legal action on behalf of Plaintiff without her authorization. This wasn’t terribly clear to me, but seems not to have been an issue. And they also allege that Mr. Weinstein of the Weinstein Group, shot guns on his property without notice to anyone in the neighborhood on the weekend before the Defendants’ depositions.

SCOV says that this behavior was unprofessional on behalf of WG but it wasn’t actionable.

Defendant Leonard had a standalone claim for invasion of privacy. A motion for summary judgment was granted on this claim, and Defendant appealed. There is a tort of invasion upon seclusion. But in order to show this, there’s got to be a lot of substantial evidence that it happened. Defendant pointed to the incident with the window-shouting and the incident with the dog. SCOV says this might have been annoying, but it wasn’t tortious.

tl;dr—It’s very hard to prevent access to the courts. Also, just because your neighbor is doing something you don’t like, that doesn’t make it illegal.


  1. Great post. Seems like there's a spelling error in the first paragraph. The "I" in the phrase "I there’s a column marked “HOAs” and it’s got several marks below it," should be "In" instead.

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