Opinion
SUPREME COURT DOCKET NO. 2012-4022
07-11-2012
Scott Gladstone and Simone Gladstone v. Floyd Amidon and Mari Amidon d/b/a Amidon Construction
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Windham Unit, Civil Division
DOCKET NO. 444/445-9-06 Wmcv
Trial Judge: Katherine A. Hayes
In the above-entitled cause, the Clerk will enter:
Plaintiffs Scott and Simone Gladstone appeal a jury verdict in consolidated cases involving a dispute over the construction of two homes. We affirm.
Plaintiffs sued defendants Floyd and Mari Amidon, owners of Amidon Construction, over the construction of two homes for plaintiffs, one a vacation home and the other an investment home. Both parties claimed breach of contract. Plaintiffs alleged that defendants did inferior work and abandoned the projects before they were completed. Defendants counterclaimed under the Prompt Pay Act for the fair value of work done on the projects. Following a trial, the jury rejected plaintiffs' claims and awarded defendants $105,000 in Prompt Pay Act damages and $56,250 for unjust enrichment on the first project, while finding no merit to defendants' counterclaim arising from the second project. Plaintiffs argue on appeal that: (1) remarks during closing argument by defendants' counsel encouraging bias against the nonresident plaintiffs violated their equal protection rights under the Privileges and Immunities Clause of the United States Constitution; and (2) the jury incorrectly applied the provisions of the Prompt Pay Act in arriving at its award.
Plaintiffs first argue that their equal protection rights under the Privileges and Immunities Clause were violated when defendants' counsel asked the jury to render a verdict in defendants' favor because they were Vermonters and plaintiffs were nonresidents. At trial and during closing argument, plaintiffs emphasized the meticulous records that they kept, in contrast to defendants, who failed to produce change orders and other written documentation supporting their claims. In response, in closing argument, defendants' counsel acknowledged that defendants were neither highly educated nor sophisticated and thus "didn't have any fancy change orders" but nonetheless knew their business. Continuing that theme and contrasting plaintiffs and defendants, defendants' counsel stated as follows at one point during his closing argument covering fourteen pages of transcript:
Scott [Gladstone]'s a realtor. Scott is not wet behind the ears.Defendants argue that these remarks were aimed only at countering plaintiffs' contention that defendants' lack of formal written documentation was significant. On the other side, plaintiffs assert that these remarks were aimed solely at getting the jurors to render a verdict based on improper criteria—namely, that defendants were Vermonters, as already established on direct examination of Floyd Amidon, and that plaintiffs were not.
This guy is, I'm sorry, but city slick. All right?
In his part-time, ten percent of his business, okay? This is what's going on. And I don't—I don't want to play the Vermont card, but I'm really asking you to. Because what [plaintiffs' attorney] wants you to see are change orders with people who [are] . . . up over 260 grand in this project just in cost, just in cost.
Notably, plaintiffs' counsel did not object at trial to the remarks. He states that he did not do so "for fear that the discriminatory words, already uttered and heard, would be further pressed into the awareness of the jury." Instead, he elected to "rely[] upon the doctrine of plain error to preserve the issue on appeal." This decision is fatal to his claim of error. "In general, issues not raised at trial are unpreserved, and this Court will not review them on appeal." Follo v. Florindo, 2009 VT 11, ¶¶ 14-15, 185 Vt. 390 (declining to address unpreserved claim that remarks made during closing argument were improper and prejudicial). Plain-error review in civil cases is available only "when an appellant raises a claim of deprivation of fundamental rights." Id. ¶ 16 (rejecting plain-error argument with respect to unpreserved claims of error, including claim that improper and prejudicial remarks were made during closing argument).
Plaintiffs base their claim of error on the Privileges and Immunities Clause of the United States Constitution, which "imposes a direct restraint on state action in the interests of interstate harmony." United Bldg. and Constr. Trades Council of Camden Cnty. and Vicinity v. Mayor of Camden, 465 U.S. 208, 220 (1984). Here, the purported "state action" is the trial court allowing the remarks of defendants' counsel "without comment," thereby giving the jury "implicit permission" to find against plaintiffs based upon their residency. Ironically, plaintiffs complain about the trial court's silence but at the same time state that they did not object to the remarks because they did not want to bring further attention to them. If plaintiffs believed that the remarks prejudiced their case, they needed to object and either seek a mistrial or a curative instruction rather than wait for the jury's verdict and then challenge the remarks for the first time on appeal. Cf. Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 540 (2d Cir. 1992) (concluding that remarks made by defendants' counsel during closing argument aimed at eliciting regional-based prejudices required new trial where trial court overruled plaintiff's timely objection and gave no curative instruction and where defendants offered no proof or witnesses, relying instead on their prejudicial remarks in brief summation of case).
Plaintiffs also argue that the jury verdict with respect to defendants' counterclaim under the Prompt Pay Act must be overturned because there was no evidence to support the jury's affirmative responses to questions on the special verdict form asking whether defendants had submitted "invoices to the plaintiffs for payment of amounts due" and whether plaintiffs failed without good cause "to make timely payments when due." See 9 V.S.A. § 4002(c) ("Except as otherwise agreed, payment of interim and final invoices shall be due from the owner, 20 days after end of billing period or 20 days after delivery of invoice, whichever is later."). According to plaintiffs, there is no way that they could have failed to timely pay an invoice or amounts due for purposes of the Prompt Pay Act, given that defendants never produced a final invoice for a sum certain and gave inconsistent trial testimony on what amounts were due.
Although plaintiffs do not frame the issue as such, they are basically arguing that they are entitled to judgment as a matter of law because there was insufficient evidence to support the jury's Prompt Pay Act award. There is no indication, however, that plaintiffs preserved this argument by raising the issue at trial. See V.R.C.P. 50(a)-(b) (providing that party who believes there is no legally sufficient evidentiary basis for reasonable jury to find for opposing party on certain issue must make motion for judgment as matter of law before case is submitted to jury, and post-verdict renewal of motion is necessary to challenge denial of motion on appeal); Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 27, 187 Vt. 309 (ruling that party claiming insufficiency of evidence to support punitive damages award waived issue by failing to raise it at trial). Even assuming that this claim had been preserved, there was ample evidence that defendants made demands upon plaintiffs for funds owed, including through a lien on their property, and that plaintiffs were aware of this fact but declined to make any further payments rather than contact defendants about the specifics of what was owed. See 9 V.S.A. § 4004 (providing that documentary errors in invoices are deemed waived if receiving owner does not contact invoicing contractor about errors within ten working days of receiving invoice).
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice