Opinion
No. 357-78
Opinion Filed May 16, 1980
Injunction — Dissolution — Hearing on Damages
Where plaintiffs' temporary restraining order was discharged upon dismissal of their action, and restrained parties' motion for hearing on assessment of damages for wrongful issuance of the restraining order was denied without hearing, even though it asserted a claim for recovery based on factual allegations of injury, the denial must be reversed and the cause remanded for hearing on question whether restrained parties could establish damages from improper restraining order.
Appeal from dismissal of co-defendants' attempted appeal to superior court. Windsor Superior Court, Morrissey, J., presiding. Affirmed in part, reversed in part and remanded.
Jerome I. Meyers, Weathersfield Center, for Plaintiffs.
Natt L. Divoll, Jr., Bellows Falls, for Defendants Osgood.
Richards and Lawlor, P.C., Springfield, for Defendants.
Present: Barney, C.J., Daley, Billings and Hill, JJ., and Springer, District Judge, Specially Assigned
This appeal arose from a dismissal of an attempted appeal to Superior Court. The lower court determined that the procedure followed below did not comply with the provisions of V.R.C.P. 74 so as to give that court jurisdiction. Vermont Division of State Buildings v. Town of Castleton Board of Adjustment, 138 Vt. 250, 254, 415 A.2d 188, 191 (1980); State v. Kennison, 135 Vt. 238, 239, 373 A.2d 556, 557 (1977); Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 241, 260 A.2d 406, 407 (1969). That ruling is affirmed.
The court had granted a temporary restraining order for benefit of the plaintiffs. It was discharged with the dismissal of the action. The defendants Osgood, applicants to the Zoning Board for a construction permit, were the party restrained. They timely moved for a hearing for assessment of damages for the wrongful issuance of the temporary restraining order. Although the motion asserted a claim for recovery based on factual allegations of injury, it was denied without hearing. The Osgoods filed their own valid notice of appeal to this Court on that issue.
It is apparent that the order denying relief for injunctive injury was made without proper hearing. Therefore, that order must be reversed and the cause remanded for hearing on the limited question of whether or not the Osgoods can establish any damage under the law in connection with the improper imposition of the temporary restraining order. 12 V.S.A. § 4447, Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630 (1974).
The dismissal of the appeal of the order of the Zoning Board of Adjustment is affirmed; the order dismissing the motion for a hearing on the issue of damages consequent to the temporary restraining order is reversed, and the cause is remanded to the determination of such damages, if any.