E & E Properties, Inc. v. Tatro

Citation: Not availableDocket: 509

Court: Vermont Superior Court; April 11, 2012; Vermont; State Appellate Court

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E. E Properties, Inc. seeks to evict Rebecca L. Tatro from her apartment at 302 Pleasant Street, Bennington, after serving her a termination notice on November 14, 2011. Tatro did not vacate, prompting the plaintiff to file suit on December 30, 2011. Tatro's motion to dismiss the complaint for failure to state a claim was filed on January 20, 2012, to which the plaintiff responded on February 21, 2012, and Tatro replied on March 19, 2012. The court heard oral arguments on March 30, 2012, with Ray Bolton, Esq. representing the plaintiff and Rebecca Fay, Esq. representing the defendant.

Motions to dismiss are infrequently granted, focusing on the legal sufficiency of the complaint rather than the underlying facts. The court assumes the truth of all factual allegations in the complaint and considers all reasonable inferences in favor of the non-moving party. A motion to dismiss should only be granted if there are no conceivable facts that would entitle the plaintiff to relief.

In this case, the plaintiff's termination notice cited two grounds for eviction: (1) for cause under 9 V.S.A. § 4467(b)(1) due to Tatro's repeated non-compliance with health regulations, with a 30-day vacate notice; and (2) no-cause termination under 9 V.S.A. § 4467(c) and (e), with a 90-day vacate notice. Tatro's failure to vacate prompted the current litigation, which includes counts for both cause and no-cause eviction.

Plaintiff's initial complaint included a phrase regarding the "anticipatory/effective hearing date" at the end of the allegations concerning the no-cause termination of tenancy. On February 21, 2012, the plaintiff sought to amend the complaint, omitting this phrase from Count II. In her motion to dismiss, the defendant raised four primary arguments: 

1. The termination notice was defective for not specifying a calendar date for vacating the apartment, as required by 9 V.S.A. 4467(f), which mandates that the termination date be explicitly stated. This is supported by various trial-level decisions emphasizing the necessity of a specific date, rather than a calculation method.

2. The notice was vague and confusing, presenting two different grounds for eviction with differing vacate dates.

3. Count I should be dismissed due to the termination notice's failure to detail how the defendant allegedly failed to comply with housing regulations or cite those regulations.

4. Count II should be dismissed because it was filed before the expiration of the required 90-day notice period.

Regarding the first argument, the defendant contends that the absence of a specific termination date creates confusion and speculation about the notice's meaning, which has been deemed grounds for invalidation in past cases, including Andrus v. Dunbar. The court's role involves interpreting statutory language according to its plain meaning, and if ambiguity arises, it will consider the statute's subject matter and underlying intent to clarify the legislative purpose.

Landlords are not mandated by statute to include specific calendar dates in termination notices under 9 V.S.A. 4467(f). The term "date" is broadly defined to indicate any particular day, which could be conveyed using references like "tomorrow" instead of an exact calendar date. Although the defendant contends that the term "specifically" necessitates a calendar date, this interpretation is not evident from the statute’s language. The statute requires clarity and unambiguity in expressing the termination date, which can be achieved through phrases such as "thirty days from the receipt of this notice." Requiring a calendar date could pose practical challenges for landlords, given the uncertainties surrounding service methods, such as relying on local law enforcement or mailing notices, which may lead to unpredictable receipt times. Thus, while including a calendar date is preferable, it is not a statutory requirement, and its absence does not warrant dismissal of the case. Additionally, the defendant claims that the notice is defective due to presenting two grounds for eviction with different termination dates.

The notice of termination served to the defendant presented two conflicting commands regarding eviction: one required vacating the apartment within thirty days, while the other allowed for ninety days. The defendant argued that this ambiguity caused confusion about the actual deadline for vacating, leading her to speculate on the legal implications. Despite the notice's conflicting termination dates, it ultimately provided the defendant with two options: vacate within thirty or ninety days. The defendant was entitled to rely on the longer, ninety-day period but failed to vacate within that timeframe, allowing the plaintiff to pursue eviction.

Additionally, the defendant contended that the notice of breach was ineffective due to a lack of specific facts supporting the grounds for termination, asserting that it should have cited specific regulations violated. She referenced the case Allinson v. Davis, where a notice was dismissed for not stating a valid ground for termination. However, the current notice adequately referenced a violation of 9 V.S.A. 4456(a), which prohibits tenants from causing noncompliance with relevant regulations, and thus provided a legitimate basis for eviction under 9 V.S.A. 4467(b)(1). Overall, the notice was sufficient in asserting grounds for eviction, distinguishing it from the Allinson case.

The notice of termination for eviction is deemed sufficient despite lacking detailed factual support for the alleged regulatory breach. Although best practices recommend providing a summary of the basis for eviction, the absence of such details does not render the notice defective. The defendant retains the right to challenge the eviction and may demonstrate that no breach occurred through the discovery process. 

Regarding the anticipatory claim for no-cause eviction, the defendant's argument for dismissal based on timing is rejected. The comparison to U.S. Bank Nation Association v. Kimball is found inapplicable, as this case involved a failure to present evidence throughout the trial, which is not the situation here. The record indicates current breaches by the defendant, which justifies the anticipatory claim. The court recognizes that anticipatory claims are common in Vermont, particularly in divorce proceedings, where future grounds for action can be alleged. 

Finally, the court denies the defendant's Motion to Dismiss and considers the motion to amend moot. It invites both parties to submit a discovery order within 15 days to prepare for a merits hearing within 90 days. A one-hour hearing will be scheduled accordingly. The decision is issued by Superior Court Judge Katherine A. Hayes on April 11, 2012.