Opinion
SUPREME COURT DOCKET NO. 2012-023
07-11-2012
Debra L. Whippie v. Robert E. O'Connor
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Bennington Unit, Civil Division
DOCKET NO. 34-1-05 Bncv
Trial Judge: David A. Howard
In the above-entitled cause, the Clerk will enter:
Defendant Robert E. O'Connor appeals pro se from a decision of the superior court, civil division, awarding $22,380 to plaintiff Debra L. Whippie as her share of the equity in the property owned by the parties as tenants-in-common. We affirm.
This is defendant's third appeal to this Court in connection with a partition action brought by plaintiff, his former girlfriend, to determine the parties' respective interests in a house they own as tenants in common. In the first appeal, we affirmed the trial court's findings that the parties owned equal shares in the property, that plaintiff ceased contributing to expenses in early 2003, and that defendant's letter of no-trespass in September 2004 excluded plaintiff from the property, but we reversed the judgment and remanded for a further accounting and determination of the equities. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523.
In the second appeal, we affirmed the trial court's finding on remand that the no-trespass order represented an ouster entitling plaintiff to a credit for one-half of the rental value, but reversed the court's ruling that defendant was not entitled to a contribution from plaintiff for necessary maintenance costs incurred during the period of the ouster. See Whippie v. O'Connor, 2011 VT 97, ¶ 17 (mem.) (Whippie II) (holding that "defendant was entitled to compensation for half of the maintenance costs he paid . . . even after the ouster"). Accordingly, we reversed and remanded with specific directions to the trial court "to determine the value of defendant's expenditures on maintenance costs" for the period in question, to deduct half of this amount from plaintiff's share of the property value, and then credit her share "with the already determined rental value for the ouster period." Id.
On remand, the trial court directed the parties to submit written calculations of the amount of maintenance costs to which defendant was entitled under our decision. Thereafter, the court issued a written ruling, finding that the maintenance costs totaled $28,697.85; that plaintiff's required contribution was half that amount, or $14,348.93; that adding a previously determined offset resulted in a total offset to plaintiff of $20,212.92; and that adding in the previously determined rental credit of $19,351 resulted in plaintiff's share of the property (which was valued at $150,000) equaling $64,138 and defendant's $65,862, for a forty-nine to fifty-one percent split. Applying these percentages to the total equity of $46,091 yielded a $22,580 share to plaintiff. A further deduction of $200 for one-half of the appraisal fee resulted in a final award to plaintiff of $22,380. The court ordered payment in full within sixty days of the judgment "unless further extended by agreement or good cause with that time period," or failing that a sale of the property and payment to plaintiff from the proceeds. This appeal followed.
Defendant states that his appeal "is largely to address the double credit" awarded plaintiff. He appears to claim that plaintiff is not entitled to any portion of the equity in the property, and that the findings on ouster and plaintiff's right to a credit for the rental value of the property were in error. It is evident, however, that defendant's arguments are addressed to issues that were finally decided in the previous two appeals. Thus, they are the law of the case and may not be revisited in a later appeal. See Whippie II, 2011 VT 97, ¶ 7 (declining to revisit several of defendant's arguments on the ground that they were settled in the first appeal and could not be reconsidered under the law-of-the-case doctrine). The only cognizable issue before the trial court on remand, and before this Court on appeal, concerns the calculation of the maintenance expenses owed by plaintiff, and defendant has not clearly challenged the court's ruling in this respect. See Havill v. Woodstock Soapstone Co., 2007 VT 17, ¶ 10, 181 Vt. 577 (mem.) (noting that remand order limits issues before trial court to those set forth in the mandate, and does not operate to reopen case generally or authorize trial court to consider issues beyond scope of remand). Accordingly, we discern no basis to disturb the judgment.
Affirmed.
BY THE COURT:
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John A. Dooley, Associate Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice